Madhya Pradesh High Court
Sharique Ali And Ors. vs State Of Madhya Pradesh And Ors. on 11 January, 2002
Equivalent citations: 2002(1)MPHT315
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. The centrum, issue that we are obligated to advert to in this batch of writ petitions, which are inseggregable and inseverable, is "education" that makes a man a complete human being in its conceptual essence and connotative continuum. In the days of yore, a realised poet Bhartruhari sang in the glory of 'Vidya' in the following terms:--
"VIDYA NAAM NARASYA ROOPAMADHIKAM PRACHHANNA GUPTAM DHANAM VIDYA BHOGAKARI YAASHAH SUKHAKARIYI VIDYA GURUNAM GURUH VIDYA BANDHUJANO VIDESHGAMANE VIDYAPARAM DAIVATAM VIDYA RAJASUPUJYATE NAHI DHANAM VIDYA BIHINAH PASHUH."
A free translation of the aforesaid verse would mean that education is the most resplendent exposition of a man and in it inheres the concept of quintessential treasure. It is the bedrock of all happiness, fame and pleasure. Education is the preceptor of the teacher and acts as a dear friend in travel and is the supreme God, the creative intelligence. It is education but not money which is honoured and respected in the royal assembly. For these reasons, a man without education is equated with an animal.
2. In this context, we may profitably refer to the wise saying of the great Chanakya, the eminent political philosopher of India, who in his own inimitable style expressed thus:--
"KAMADHENU GUNA VIDYA HYAKAALE PHALADAYINI.
PRABASE MATRU SADRUSEE VIDYA GUPTAM DHANAM SMRITAM."
Another ancient sage of India giving emphasis on the utility of education expressed thus:--
"MATEVA RAKSHATI PITEVA HITENIYUNKTE KANTEVA CHAVIRAMAYANTYAPANEEYA KHEDAM LAKSHMIM TANOTI VITONATI CHA DIKSHU KEERTIM, KIM KIM NA SADHAYA TI KALPA LATEVA VIDYA."
Yet a further sagacious saying :--
"NA CHOURAHARYAMA NA CHA RAJAHARYAM, NA BHARTRUBHARYAMA NA CHA BHARAKARI, VYAYE KRITE VARDHATA EVA NITYAM VIDYA DHANAM, SARVA DHANAM PRADHANAM."
From the aforesaid it is quite luminescent that it is education, the real hidden treasure in a man, which comes to his aid. Not for nothing it has been said that the process of evolution from ignorance to knowledge, from knowledge to wisdom and from wisdom to understanding of consciousness takes place through education which is regarded as a part of divine attainment. It is education which teaches purity of mind, righteousness of conduct and truthfulness of soul. If we allow ourselves to say so, education has the potentiality of metamorphosing eternal passion to everlasting sublimation and eternal pain to permanent peace.
3. We have begun with the aforesaid prefatory note because it is the spinal issue that has spiralled to this Court, and there was quite a long debate on the said score. The main thrust is : whether the State of Madhya Pradesh which for more than last two scores and more years had endeavoured to build an educational system to make people realise their individuality in a wholesome manner to achieve the requisite goal in a democratic set up and provide such necessitus facility so that they can aspire to become a part of the global education system and, if we confer the allowance upon ourselves to state, it leaped a step forward keeping pace with the concept of modernity and progress, be allowed to crush the edifice that had been so carefully and exquisitely built with enormous and sanguine effort; should the real concept of education be crucified at the altar of the literacy programme should the State be permitted to dismember and scuttle the growth of Non-Government aided educational institutions for making some improvement of Government run institutions or should they be treated with the feeling of sorority and concinnity as if they are two inseparable limbs of the same mother - the welfare State; and further whether the teachers or the Gums, who had been put on a pedestal on the basis of the principle that they had been ascribed the role AGYAN TIMIRANDHASYA GNYANANJAN SALAKYA since ages, be compelled and constrained to lead a life which is sans substance, sans spark that livens life and sans a meaningful and purposeful living. To elaborate, we are in these writ petitions, called upon to deal with a situation which, according to our humble view, is a complex one because of its own peculiarity and the attached gravity. The situation frescoes a picture where the registered societies which run educational institutions and the teachers who impart education in these educational institutions have come to the centre-stage as protagonists to canvass and propound their point of view and have called in question the pregnability and penetrability of the amendments that have been brought into the statute book, namely, the Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978 (M.P. Act No. 20 of 1978), (hereinafter referred to 'the Act'). The vires of certain provisions have been assailed in the backdrop of many a ground which we shall advert to at a later stage in detail.
4. In the beginning we had indicated that the batch of writ petitions being interlinked and interconnected was heard together, but we will be referring to the facts adumbrated in certain writ petitions, as the pleadings in the said writ petitions are complete in all aspects. After we narrate the pleadings, we shall refer to the historical aspects and the spectrum of legislation and the purpose behind it and thereafter itemise the submissions Putforth by the learned counsel at the Bar.
5. Before we scan the intendment of the provisions that have been brought by way of amendment in the conceptual canvass, we may state in a montos comis manner that there is also challenge in some of the writ petitions to the action of the State Government which despite the categorical commitment given by it after availing amount from the University Grants Commission, had not extended the said privilege to the educational institutions which are covered under the Act and entitled under law to get the said benefit. It is alleged that they have been deprived of the same because of an adroit effort by the State Government and a clever subterfuge introduced by the administration to sabotage the whole concept. The attacks are manifold, some are germane and some are, in our humble view, not. Before we catalogue the contentions in seriatim, the facts as have been undraped in the writ petitions, namely, Writ Petition Nos. 4657/2000, 4426/2000 and 2044/2000 are to be stated, inasmuch as they portray the factual scenario encapsuling the entire controversy so that we do not have to advert to other writ petitions. Hence, we proceed to narrate.
6. Presently, to the factual matrix of W.P. No. 3751/2000. At this juncture, we may hasten to add that we have chosen the three writ petitions as it has been accepted by learned counsel for the petitioners in all cases as well as by the learned Advocate General, Mr. V.K. Tankha that the pleadings in these cases are complete in all respects. We must, in all fairness, give credit to the learned Advocate General that he did not oppose any document to be referred to by us which was produced in course of hearing and later on brought on record by way of affidavit, as the learned Advocate General felt, and rightly so, that the controversy must be put to rest from all angles.
7. In the aforesaid writ petition, petitioner No. 1 is a society duly registered under the provisions of the Society Registrikaran Act and is engaged in the social and educational advancement of the citizens at Indore. The Gujrati Samaj is recognised as a minority community by respondent No. 1, namely, the State of Madhya Pradesh and has the right to establish and administer the educational institutions of their choice. In the year 1923, the Gujrati Samaj established a School which was upgraded to an Intermediate College of Commerce and Science in the year 1958. Arts faculty was introduced in 1961, Post-Graduate Classes commenced thereafter and in 1963 LL.B. Classes were started. In 1970, the College was bifurcated into three independent Colleges which have been brought on record as petitioners 2 to 4. In the year 1974, the Science College became a Post-Graduate College. In the year 1982, petitioner No. 5 came into existence as a Commerce College and later on in 1983 Science faculty was added to it. In the year 1986, Post-Graduate Commerce classes also commenced making it a Post-Graduate College. Petitioners 2 to 5 are duly affiliated to Devi Ahilya Bai Vishwa Vidyalaya, Indore, and receiving 100% grant-in-aid from respondents 1 and 2. Similar pleadings have also been Putforth in respect of other petitioners. It is apposite to mention here that the petitioners are affiliated to differed Universities.
8. According to the writ petitioners, qualifications have been provided for in the Madhya Pradesh Viswa Vidyalaya Adhiniyam, 1973 (for brevity 'the Adhiniyam, 1973'). Reference has been made to the "College Code" which provides that the scales of pay for different categories of teachers in the College including the Principal shall be such as prescribed from time to time by the State Government for similar categories in Government Colleges. In essence, the pleading is to be the effect that as per the provisions of the Adhiniyam, 1973, and the mandate of the College Code, the payment of salary to the staff in aided Colleges is equivalent to that of Government Colleges. Reference has been made to the Statement of Objects and Reasons of the enactment. It has been Putforth that keeping in view the objects and reasons of the Act and with the pious obligation for betterment of education, the Legislature made it incumbent upon the State Government to take up 100% responsibility of payment of salary of teachers and other employees which was at a lesser percentage earlier on. The letter circular dated 2-4-1981 issued by the Madhya Pradesh Uchcha Siksha Anudan Ayog has been brought on record as Annexure B-10. It is set forth that an institutional fund was created for payment of salary of teachers and other employees for which a separate head of treasury account was opened and the State Government was placing to the credit of the fund in advance the sum for payment of 100% salary of teachers and other employees. It is apposite to mention here that there is reference to various definitions, namely, 'institution maintenance grant' to highlight that the State Government had the control over the appointment and payment of salary of the teaching staff and none could be appointed without prior approval of the Stale Government and none could be removed without its prior approval. Reference has been made to M.P. Ashaskiya Shikshan Sanstha (Institutional Fund) Rules, 1983 (hereinafter referred to as 'the Rules') wherein provision has been made that the salary shall be credited to the institutional fund by 20th of each month. According to the writ petitioners, the grant-in-aid covered revised scales of pay from time to time for teachers as prescribed by the U.G.C. in order to maintain parity between the aided educational institutions and the Government run educational institutions. Respondent No. 1 vide its order dated 3-11-1988 accepted the salary as per the recommendation of the 4th Pay Commission w.e.f. 1-1-1986 and full 100% maintenance grant was paid by the State Government. Respondent No. 4, the Central Government vide its Notification No. F-1/22/97-VI, dated 27-7-1998, addressed to all the Education Secretaries of the State on the subject of revision of pay scales of teachers of Colleges stating that in discharging its constitutional responsibility the Central Government have taken a decision to continue to provide financial assistance to the State Government which was to adopt and implement the schemes of revision of pay scales subject to the terms and conditions which, inter alia, provide that the Central Government would provide 80% of the additional expenditure involved in the implementation of the revision and after 31-3-2000 the entire liability of the revision of pay scales could be taken over by the State Government. It is clear that the Government of India has envisaged to apply the benefit of revised scales of pay to all other College teachers without any discrimination between Government and Non-Government College teachers receiving grant-in-aid. It is Putforth that the State Government adopted the scheme and accordingly accepted 80% assistance from the Centre. The U.G.C vide its order No. F/3/1/94 PS, dated 24-12-1998 addressed to the Vice-Chancellors of all the Universities requiring them that the revision of pay scales would be applicable to every institution affiliated to the University. It is put forth that though the State Government had accepted the assistance from the University Grants Commission, it failed to perform its duty and shifted the responsibility to the management as it imposed an unauthorised, illegal and arbitrary condition to the effect that from 1-4-2000 additional burden due to revision of scales of pay would be borne by the management of Non-Government educational institutions. A copy of the communication has been brought on record as Annexure B-14. Respondent No. 2 sent an undertaking to accept full burden of revision of pay by private educational institutions themselves. Vide letter No. CGS/463/2000, petitioner No. 3 wrote to respondent No. 2 that the additional burden of revision of pay scale cannot be borne by the petitioner-institutions since 100% maintenance grant was being disbursed by the State Government. While the matter stood thus, on 23-2-2000, the petitioner-institutions received a letter from respondent No. 1 for sending an undertaking of paying full revised salary by the petitioner-institutions. Inability was expressed by the managements of the institutions. Certain assertions have been made as to how correspondences went on between the representatives of the teachers' Union and the Association which run various educational institutions to the people in the helm of affairs not to withdraw the grant by enacting any amendment, but contrary to their expectations Ordinance No. 2, dated 13-4-2000 was promulgated by the Governor of Madhya Pradesh under Article 213 of the Constitution of India.
By the said Ordinance, the definitions of grant, salary and various other aspects were amended. It is noteworthy to mention here that the Ordinance was promulgated during the pendency of the writ petition and thereafter the amendment was brought into the statute book by the State Legislature, by Amendment Act No. 26 of 2000. The said amendment is called the M.P. Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam, 2000 and it came into force w.e.f. 22-8-2000.
9. At this juncture we may briefly refer to the factual matrix in W.P. No. 4657/2000. In the said writ petition, the petitioners are educational societies running educational institutions of higher education and all the colleges are affiliated to the Rani Durgavati Vishwa Vidyalaya, Jabalpur. In the said writ petition it has been averred in a categorical manner that before the Act came into force in the year 1978, the management was paying the salary within its means. Initially 75% of grant was given which was not solving the problem of teachers and they were exploited. Keeping the aforesaid factual matrix in view, the State Government issued a Memorandum dated 2-4-1981 (Annexure P-l to the said writ petition) to the effect that the State Government had decided to take over payment of salary to teachers of the colleges and the non-teaching staff thereof. It is Putforth that the Act was brought into force to save the teachers from exploitation and pay them salary at par with teachers in Government Colleges.
10. It is relevant to mention here that certain other facts which are necessary to be stated and are available in other writ petitions are that the State Government by order dated 15-12-1992 had extended facility of pension, gratuity, family pension and provident fund to teachers w.e.f. 1-4-1987. The State Government vide its letter dated 17-11-1995 declared the additional dearness allowance, interim relief and city compensatory allowance to the teachers and employees of the private colleges. These payments were declared to be made according to the norms provided for teachers/employees of Government Colleges. It is also Putforth that certain talented youths joined the private colleges by refusing to accept jobs under the State Government as in the State Government service certain incidences of service like transfer etc. are involved whereas they are not in existence in private educational institutions. It is also Putforth that the aided educational institutions are catering to the aspirations of talented youths who are interested in the education and they are the real educational institutions imparting education to the enterprising youth.
11. We may at this stage state that in almost all the writ petitions, the factual scenario is the same, but in some cases, the petitioners are the teachers, in some cases, it is the educational institutions and the institutions have advanced the cause of the teachers. Various grounds have been Putforth challenging the amendment which we shall briefly enumerate.
12. It is averred in the petitions that the amendment broughtforth is violative of Articles 14, 16, 19(1)(g) and 21 of the Constitution of India. It is also urged that the order passed by the State Government in regard to the extension of benefit of the U.G.C. Scales of pay to the teachers serving in aided educational institutions is totally arbitrary and shockingly perverse, inasmuch as it amounts to negation of the benefits to the petitioners who are lawfully and legitimately entitled to the same. Legislative competence and repugnancy have also been urged.
13. It is put forth that the teachers who are appointed in aided educational institutions are to be treated at par with Government teachers as they perform similar duties and if they are denied the same privilege that will not only be discriminatory but would also amount to throwing them to a place in which they have to virtually lead an animal and savage existence. It is urged in the petition that the Act 20 of 1978 had cast an obligation on the State Government to provide salary to teachers of the aided educational institutions which are eligible to receive grant-in-aid, but by the amendment which has come into existence, the State Government has escaped from performing the constitutional obligation which is an inalienable duty in a welfare State and hence, the same is liable to be declared as ultra vires.
14. According to the writ petitioners the amendment that has been brought forth has ushered drastic changes in the Principal Act frustrating the whole object and purpose of the Act and hence, the same is totally unconstitutional. It has also been pleaded that the amendment violates the conscience of Article 39(d) of the Constitution of India and exposes the unprogressive steps by the State Legislature which are not to be countenanced as that shakes the bedrock of the Constitution.
15. It is also put forth that the State Government is under solemn obligation to pay the equivalent scale to the petitioners who are working in aided educational institutions with that of the teachers working under the Government and as the same is not done, the whole enactment is discriminatory, unjust, irrational and the concept of equal pay for equal work is violated/varied without any sanction of law. It is averred that when the Central Government had given the sanction and provided the grant for payment of salary in accordance with the scheme framed by the U.G.C., and the State Government had accepted the funds from the Central Government, it is obligatory on its part to extend the said benefit to the teachers serving in the aided educational institutions and cannot wriggle out of the same by throwing all norms to the wind and putting the responsibility in entirely on the societies running the educational institutions, as such an action is not only impermissible, but also hit by the doctrine of promissory estoppel.
16. It is also put forth that the conditions imposed by the State Government that the scale would be given to the teachers after 1-4-2000 by the management smacks of arbitrariness and is not in consonance with the provisions of the University Grants commission Act. It is the further case of the petitioners that the State Government at a latter stage has taken a somersault and decided to give advantage of grant-in-aid to the minority institutions and other institutions which have large number of Scheduled Caste and Scheduled Tribe students, which is not conceivable in the framework of the Constitution as none of the Articles of the Constitution provides for such an arrangement.
17. It is urged that the provisions which have been brought in the Amendment Act, have given a total go-by to the parent Act, thereby metamorphosing the same in letter and spirit which amounts to scuttling and curtailing of education and creating an illusion of welfare State. It is also put forth that by virtue of this legislation, the teachers who have been earning their livelihood have been thrown on the mid-path nowhere to go and hence, such a piece of legislation is hit by Article 21 of the Constitution. It is also contended in the writ petition that by such an action, there will be a rise of commercial shops imparting education, and such opening of educational shops has no sanction of law and hence, the amendment violates the principles laid down by the Apex Court making it sensitively susceptible.
18. A return has been filed by the answering respondents in W.P. No. 1104/2000 contending, inter alia, that the State of Madhya Pradesh and its instrumentalities are faced with financial and administration crisis of great magnitude. The crisis is not confined to the State, but is a problem of States nationwide. A recent study has been put forth to highlight about the financial situation. It has been put forth that between 1997-98 and 1999-2000 the income-expenditure imbalance of all States (revenue deficit) has become more than double from Rs. 16,000/- crores to Rs. 41,000/- crores. The total debts of all Governments which was Rs. 2,43,525/- crores three years ago, had touched a staggering figure of Rs. 4,09,258/- crores in 1999-2000. The State Governments are in the midst of an unprecedented financial crisis. The financial collapse has been mentioned in respect of various States, such as Madhya Pradesh, Maharashtra, Orissa, Tripura, Uttar Pradesh, Assam, Rajasthan, West Bengal and Punjab. It is apposite to mention here that these figures have been mentioned on the basis of the recent study published in All India Journal. It is the further stand of the respondents that the State of Madhya Pradesh is facing a very severed financial crisis and is not in a position to pay salary to its regular employees and all projects and day-to-day activities of the Government have been seriously hampered. The State does not even have enough financial resources to run the Government as it is. To rejuvenate the financial health of the State drastic measures and steps are being taken. The State has cut down its expenditure drastically. More than 16,000 daily wage employees have been disengaged. All projects and development activities have been stopped. The State is presently going to cut down its establishment cost at least to the extent of 30%. In such a situation, the State of Madhya Pradesh cannot afford to dole out grants and distribute money to such institutions and aided institutions specifically in view of the fact that no person or institution has right to receive any grant which is an ex gratia facility extended by the State. In view of the abovementioned severed financial crunch it is impossible for the State to distribute grants and, therefore, the State Government has taken a decision to reduce the same in a phased manner so as to ensure that aided private educational institutions become self-sufficient like other unaided private institutions which are able to manage their affairs without any grant or other financial assistance from the State. The respondents have pleaded that prior to 1978, the State Government used to provide certain financial aid to private bodies engaged in providing education in accordance with the provisions contained in the United Rules for grant-in-aid to Non-Government educational institutions of Madhya Pradesh, 1960. The educational institutions receiving grant-in-aid from the State Government used to misutilise the same. Numerous complaints were received regarding mismanagement of institutions and particularly exploitation of teachers and other staff working in such institutions. In order to regulate payment of salary to teachers and other employees of Non-Government Colleges/Schools receiving grant-in-aid from the State Government, the State Legislature enacted the M.P. Shaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978 (Act 20 of 1978). The avowed object of the aforesaid enactment was to ensure payment of full salary to teachers of private educational institutions and provide them security of tenure. As averred, the Act provided a complete machinery for release of aid by Slate Government and/or for proper disbursement of salary to the beneficiary. Suitable provisions were made in the Act for appointment, promotion, suspension, disciplinary action and termination. In exercise of powers contained in Section 10 of the Act, the State Government framed a set of rules for granting grant-in-aid, known as Revised Grant-in-aid Rules for Non-Government Educational Institutions in Madhya Pradesh. Rule 5 of the said Rules specifically provides that no grant can be claimed by any institution as a matter of right and grant shall be made subject to certain terms and conditions specified therein. By virtue of the provisions contained in the Act and the Rules made there under, the State Government took upon itself the responsibility to regulate payment of salary to teachers and other staff of certain private educational institutions. No commitment was, however, made that Government would pay salary to teachers and other employees of private educational institutions for all times to come. It has been put forth that the said Act remained in force for more than 22 years. It is the further stand in the return that the State Government has been extending the facility of giving grants to private aided educational institutions and accordingly instructions were issued from time to time to such institutions not to charge tuition fee from students. Despite clear and categorical direction, the institutions receiving aid from the State Government continued to charge fee from the students under different heads, such a school building fund, school development fund, cultural activities, sports, library etc. The students were thus not benefited by the provisions contained under this Act. It was, therefore realised that these institutions are, in fact, in the fray only as a business and were a perennial source of drain from the State exchequer. Furthermore, the institutions were mostly centered in urban or semi-urban areas where there are already substantial number of Government as well as unaided educational institutions providing standard education to the residents and which are more than able to cater to the needs of the students in these areas. Considering all the aforesaid factors, the Finance Department of the Government of Madhya Pradesh for the first time in the year 1997 came up with a proposal to change the system of providing grant-in-aid to the educational institutions. A Sub-Committee of the Cabinet was appointed under the Chairmanship of Finance Minister to go into the question of feasibility and desirability of continuing aid to private educational institutions. The Sub-Committee after elaborate discussion came to a conclusion that it would not be in the interest of public to continue aid to such institutions. On the recommendation of the said Sub-Committee, the Cabinet took a decision on 11-1-2000 to gradually stop grant-in-aid to private educational institutions. It was further decided that the instructions contained in the Memo dated 26-3-1981 regarding charging of tuition fee by the educational institutions should be superseded. It was further decided that in those areas where there are no educational institutions within a distance of five kilometers, the Government consider for grant-in-aid to institutions interested to opening schools/colleges in such areas. In order to give effect to the aforesaid decision, the Cabinet also decided to make suitable amendment in the Act of 1978. A decision was taken to give effect to the said purpose w.e.f. the next financial year commencing 1-4-2000.
19. It is the further stand of the respondents that in accordance with the decision taken by the Cabinet, the Memo dated 31-1-2000 was issued. Considering urgency of the matter and in view of the fact that the Assembly was not in sessions, the Governor of Madhya Pradesh in exercise of the powers conferred on him by clause (1) of Article 213 of the Constitution of India promulgated the Ordinance No. 2 of 2000 whereby comprehensive amendments have been made in the Act of 1978. It is set forth that the Government of Madhya Pradesh is under no legal obligation to provide any aid to private educational institutions which can collect and charge fee from the students and manage their own affairs as is being done by more than 215 unaided private institutions in Madhya Pradesh. According to the respondents much emphasis has been given in the writ petitions with regard to the non-extension of the benefit given by the U.G.C. to the teachers serving in petitioner-institutions, as a condition has been stipulated that after a particular period, the institutions have to pay the pay scale at the rate fixed by the U.G.C. and the State was agreeable to pay for a period of five years. It has been clarified that the U.G.C. bears the basic pay and not the D.A. increased from time to time and neither the other allowances and the said basic pay is paid only for a limited period. It is further put forth that the present revision of U.G.C. scales bear 80% of the basic pay for a period of 51 months i.e., upto 31-3-2000. Looking to the financial crunch and the Government's commitment in more important sectors, it agreed to bear the additional burden of even private college teachers upto 31-3-2000. On this account alone the Government is committed to pay Rs. 10.79 crores for 51 months. Therefore, it is misleading to state that the U.G.C. is bearing a major share of the burden.
20. In the return it has been asserted that in view of the amendment, the teachers working in aided educational institutions are not entitled to claim salary which was paid under the Act as there has been change in the definitions of the terms, namely, "teacher" and "salary". That apart, it has become incumbent on the part of the institutions themselves to take the full responsibility of paying their teachers. Reference has been made to the letter circular dated 17-4-2000 (Annexure R-2) to highlight that there is no bar for the institutions to either charge higher fee from its students or to pay salary to its teachers higher than that payable to Government teachers. It is put forth that the claim made by the educational institutions that the revised salaries as per the U.G.C. norms are to be continued to be paid by the Government is not tenable and the present financial condition of the State Government does not so warrant. It has been put forth that the State of Madhya Pradesh is spending Rs. 1827.90 crores in school education; Rs. 329.84 crores in higher education; Rs. 83.95 crores in medical education; Rs. 151.58 in technical education; Rs. 977.09 crores towards expenditure by Department of Scheduled Castes and Scheduled Tribes Welfare on scholarship etc. and Rs. 42.39 crores in agricultural education and this expenditure forms 19.35% of the total budget of the State and is substantially higher than the allocation by the Government of India from its own budget on education. It is put forth that the primary responsibility of the State Government under the Constitution and its Directive Principles of State Policy is to provide primary education and higher education is not the primary responsibility of the State; yet it spent Rs. 329.48 crores in 1999-2000. It is put forth that the Government has already established 415 colleges in the State and is already having 9 regional Universities and 4 other National Universities, namely, National Law Institute University, M.P. Bhoj Open University, Indira Gandhi Fine Arts and Music University, Khairagarh and Mahatma Gandhi Gramodaya University, Chitrakoot, as well as a Centre of Excellence apart from the extra burden of aid of the 300 or so private colleges run in the State. It is put forth that 97% of the budget of the State is being spent on payment of salaries with hardly any funds remaining for buildings, libraries, equipments, laboratories, etc. At present, as pleaded, 170 Govt. Colleges out of total of 415 are without their own buildings and 54 even without land for taking up building works. In view of the crunch in the resources, the Government is contemplating for closing down colleges with less than 250 students (which are nearly 139 in number) and also decided some time ago not to fill up nearly 1300 vacancies of teachers. There are many Government Colleges with inadequate teachers, outdated library facilities and inadequate laboratory facilities. It is putforth that as far as higher education is concerned, emphasis has to be on quality rather than on quantity. With the limited resources in command of the Government, the need of the hour is to reduce expenditure on salaries and improve the available equipments/facilities for better college education. It has been setforth that most of the colleges in the private sector are self-financing and are being run without any aid from the State Government. In fact, the majority of good colleges belongs to this category. As far as aided educational institutions are concerned, several instances have come to the notice of the Government where the private institutions have been misleading the Government with a view to get a bigger grant. With regard to non-payment of retiral dues, it has been putforth that the allegation that teachers and employees would not be paid their retiral benefit is not true, inasmuch as the G.P.F. deduction made from their salary shall be credited to their account and the private institutions can utilise the same to pay their retiral benefits.
21. According to the answering respondents, the principle of equal pay for equal work applies to Government Departments and the employees of the private aided educational institutions cannot demand this parity as a matter of right, more so, when the private institutions have been given the freedom to pay more if they deemed fit and for that purpose they have also been authorised to raise fees. That apart, the teachers of the private educational institutions are employees of the private educational institutions and they have no relationship with Government and if they are aggrieved, they can approach their employer. It is also stated that if the State Government does not pay the salary as per the U.G.C. norms, the same should be ensured from the private college management. It has been putforth that the management of such institution should pay them such salaries and that is why the Slate Government wrote to them on 10-2-2000 that they should confirm that they shall continue to pay at the U.G.C. scale even after 31-3-2000. They were told to reply within fifteen days failing which it would be assumed that they have no objection in doing so, but none of the institutions have replied on that score. It has been highlighted that the term "private college" becomes a misnomer if the Government continues to pay its teachers allowing the colleges to make profits at Government expenses. Since 50% of the basic fee charged by such private institutions was required to be deposited into Government account, the institutions have been adopting a devious method of hoodwinking the Government and making profits at the same time. They have been charging only a small basic fee of Rs. 10/- per month, but very large sum of money under the garb of building fund and funds for equipments, library and laboratory. Certain examples have been given in the counter affidavit.
22. In the return it has been putforth that due to paucity of funds, the Government Colleges are filling the vacancies by contract appointment and paying teachers so appointed as low as Rs. 1800/- per month. Therefore, there is no justification for the Government to pay its own teachers so low and to give full U.G.C. revised scales to teachers of private institutions who have much larger resources at their command. It has to be borne in mind that private college teachers have not gone through the rigorous selection process through Madhya Pradesh Public Service Commission and, therefore, they cannot equate themselves with Government College teachers. Reiteration has been made on the financial paucity and precariousness. It is also the stand of the respondents that the State Government is discharging its constitutional responsibility with all earnestness by giving greater emphasis on literacy campaign, primary and middle school education on which it is spending a very large share of its total education budget. The efforts made by the State Government in spreading literacy and providing primary and middle school level education, it is noteworthy to mention, has been given in the reply which has been filed by the Department of School Education.
23. It has been putforth that there are 415 Govt. Colleges in the State of Madhya Pradesh and 215 unaided private colleges affiliated to various Universities and there are only 91 aided private colleges in the State. Thus, out of 721 colleges only 91 colleges are private aided educational institutions which cater to a very small number of students. It has been putforth that all the private unaided educational institutions are paying salary to teachers at par with the scale prescribed for Government employees in accordance with Statute-28, Clause-22, framed under the M.P. Vishwa Vidyalaya Adhiniyam, 1973 and, therefore the teachers concerned should approach their respective institutions which are liable to pay salary of the teachers instead of seeking a direction against the State Government which is neither concerned with the petitioners, nor is their employer. It is also putforth that in view of the amendment, the stand taken by the writ petitioners has no legs to stand upon and deserves to be rejected. It has been highlighted that keeping in view the financial crunch and with a view to provide quality higher education with meagre financial resources, the State Government proposes to utilise the fund saved by the decision taken by it for the purposes of providing good library facilities, adequate laboratory facility, good equipment and staff to the existing colleges apart from providing building and playground. The fund sought to be raised for this purpose shall be by closing down about 139 Govt. Colleges where the strength of students is less than 250 and reducing grant-in-aid to private colleges and by increasing tuition fee for the colleges which, in fact, has not been increased for last 50 years. It is also the stand of the respondents that the allegation that the grant is being totally stopped by the State Government is factually incorrect, inasmuch as as per the amended provisions, the State proposes to provide block grant which shall be fixed by the State Government from time to time and also empowers the State to take into account exceptional circumstances. The State Government has afforded adequate infrastructure to cater for higher education in the State of Madhya Pradesh and effectively discharging its duties and obligations, whereas private aided educational institutions are in the fray only doing business and as a profitable financial venture. It is also putforth that the object of 1978 Act was only to protect the interest of children and to ensure that they were not exploited by the management of these institutions. It was only for achieving this object, the teachers engaged in the educational institutions and the amount required to be paid as salary to them were required to be furnished and thereafter deposited in a specific account. It is argued that there is no statutory obligation whatsoever on the part of the State to pay the salary of teachers who are engaged in aided educational institutions. It is putforth that teachers have no right to claim salary from the State Government which is neither their employer nor the petitioners have any relationship or otherwise with the State and if they have any grievance they may raise the same before the relevant institutions. It is putforth that there has been no violation of Article 21 of the Constitution or any other fundamental rights enshrined in the Constitution. It is putforth that there is no law which binds the State Government to provide salary to teachers in private institutions. It is highlighted that nearly 215 private unaided institutions can manage their own affairs and as such there appears to be no reason to believe that the remaining 91 educational institutions cannot survive on their own. With these averments it has been stated that the writ petitions being devoid of merit should be dismissed.
24. In the counter affidavit which has been filed in W.P. No. 2044/2000, it has been contended, inter alia, that the State of Madhya Pradesh is facing a very severe financial crisis and not able to pay salary to its regular employees and all projects and day-to-day activities of Government have been seriously hampered. The State has cut down its own expenditure drastically and in such situation it is not in a position to dole out grant and distribute money to such institutions as aided schools specifically in view of the fact that no person or institution has right to receive donation or grant, which is an extra budget or facility extended by the Slate. It is putforth that the students arc not benefitted by this grant as the institutions are mostly centred in urban and semi-urban areas where there are already substantial number of Government as well as unaided educational institutions providing standard education to the residents in existence. It is putforth that it is for the educational institutions to collect and charge fee from its students and to manage its own affairs as is being done by more than 215 unaided private institutions in the State of M.P. It is putforth that the role of private aided institutions in the field of providing education is negligible and there are about 85,000 schools which are run and managed by the State Government or through units of local self-Government such as Panchayats and Municipalities. In addition, there are about 31,000 Non-Government educational institutions which are imparting education and running on the basis of fees received from the students. There are only 2000 educational institutions in the State imparting school education and receiving grant-in-aid from the State Government. It is highlighted that 19.35% of the budget has been allotted to the education sector in 1999-2000 which comes to Rs. 3419.39 crores. Out of this, Rs. 1827.9 crores was allotted to the School Education Department alone. In addition thereto, approximately Rs. 976 crorc was allotted to the Tribal Welfare Department which is looking after the school education work in tribal areas. Rs. 88 crore goes to private educational institutions as State aid covering 2000 institutions.
It has been pleaded that out of 85,000 schools, 63,000 schools are imparting education upto Primary level; 60,000 upto Middle School level; 2329 upto High School level; and 2294 upto Higher Secondary level. It has been alleged that there have been surplus staff in the aided educational institutions. It is putforth that schemes have been framed for providing primary education to children below the age of 14 years. These schemes contemplate establishment of educational schools within a radius of one kilometer of each habitation especially in rural areas. Sufficient provisions have been made in the budget for running these educational institutions. The amount saved from the educational can be more effectively utilised in strengthening and propagating this educational programme and fulfilling the constitutional mandate. It is putforth that the State Government has further taken a decision to open educational institutions imparting education upto middle school level within a distance of 3 kilometers of such habitation specifically in rural areas. 3750 such educational institutions have already been opened and about 3500 institutions are proposed to be opened in the next financial year. It is urged in the return that the State Government is not discouraging opening of private educational institutions in rural areas. The Government is only trying to revamp the entire educational set-up in the State of M.P. A major portion of the populace of the State of M.P. resides in rural areas. The need to provide educational institutions is more in rural areas than in urban and semi-urban areas. The Government is still prepared to give aid to educational institutions in case they shift their institutions to the areas where there is no educational institution within a distance of five kilometers. It is putforth that the object sought to be achieved by the State Government is to provide educational facility to children all over the State, but not just the children residing in urban areas, but also those who reside in rural areas and Scheduled/Tribal areas in the State of M.P. After implementation of Panchayati Raj system and other educational schemes by the answering respondents, the State of M.P. has the unique distinction to achieve the goal of establishing one school in every village in the State of M.P. That apart by end of March, 2001, the State would have achieved the unique goal of establishing the middle schools within three kilometers of each habitation. It is putforth that the State has adequately provided educational facilities for its citizens. Aided educational schools are surplus schools and do not contribute or assist the State in this regard as the State has in a most effective manner catered to the need of education to its citizens. It has been highlighted that there are more than 30000 unaided private institutions imparting education in the State of M.P. whether on charitable or profitable basis and the State is willing to consider the cases of those institutions who establish educational institutions within five kilometers of such habitation where no High School/ Higher Secondary school exists for such purpose, for providing grant, etc. It is stated that the purpose of the 1978 Act was only to protect the interest of the children and to ensure that they are not exploited by the management of the schools. It is also pleaded that there is no right in the petitioners who are teachers to claim salary from the State Government which is neither their employer, nor the petitioners have any relationship with it.
25. An additional return has been filed by the respondents indicating that prior to 1978, grant to educational institutions was governed by the M.P. Integrated Grant-in-aid Rules, 1960. As per these rules, a flat grant was being given to the institutions after judging their individual requirement. The said practice continued till 1978 when the Act of 1978 came into force. The object of the said Act of 1978 was to regulate the utilisation of the grant to the institutions and to prevent exploitation of teachers working in these institutions. After the Act came into force, the State also framed Revised Grant-in-aid Rules for Non-Government Educational Institutions, 1979. Rule 5 of the 1979 Rules clearly stipulates that no grant can be claimed by any institution as a matter of right. It is putforth that the concept of 'block grant' which has been introduced in 2000 is not a new concept but was in vogue since 1960. Reference has been made to the M.P. Ashashkiya Shikshan Sanstha (Institutional Fund) Rules, 1983, to show that the rules were framed only to regulate the manner of utilisation of the funds of an educational institution so as to ensure their proper utilisation as also to ensure that the persons employed by these institutions were not exploited and received their due salary. It is setforth that the State Government is going through a very severe financial burden of funding the institutions run by third persons. The State of M.P. has already developed its additional infrastructure sufficiently so as to cater to the needs of the citizens of the State by establishing adequate number of schools and colleges. Reference has been made to the return filed in W.P. No. 2044/2000. It has been disputed that the teachers and lecturers who are employed in various educational institutions run by the private bodies which are registered under the Adhiniyam, 1973 (Madhya Pradesh Society Registrikaran Adhiniyam, 1973) have no relationship whatsoever with the respondents and, therefore, claim of salary on that score is absolutely misconceived. It is urged that the amendment has been brought into existence with the aim to prevent institutions from exploiting students by extraction of exorbitant fees from them towards Science fee, Sports fee, Library fee etc. Some figures have been indicated to show about the fee structure. It is putforth that the institutions are charging heavy fees from the students and extracting from the Government "maintenance grant" for the purpose of paying to its employees and, therefore, the amendment has been brought to eradicate this unscrupulous exploitation. It is the case of the respondents that in the State of M.P. there are 415 Government Colleges and 13 Universities. There are 63,695 Government Primary Schools; 16135 Middle Schools; 2329 High Schools and 2294 Higher Secondary Schools and in several of these institutions adequate infrastructure like instruments, furniture, equipment etc. are not available due to paucity of funds. By way of present amendment of the law, the State Government proposes to utilise those amounts towards proper maintenance and upkeep of the Government Schools and Colleges and raising their standard. It also proposes to impart due and proper education in these institutions and for that purpose fund shall be saved by implementation of the abovementioned amendment in the Act. A comparative chart has been given about the Government Colleges in various other States. It is putforth that because of these measures being taken, the State Government has fulfilled its constitutional obligations and hence, the State Government has no obligation to maintain the aided educational institutions, more so, when the State urgently requires fund for running and maintaining its own institutions. It has been alleged that huge amounts are extracted by these institutions from students in the garb of needing funds for various activities which are, in fact, utilised for making profits. It has been putforth that the Government institutions are not working to the fullest extent of their capacity and, therefore, there is basic facility for accommodating all the poor students and others who went to avail of educational facility free of cost in Government educational institutions. The locus standi of the petitioners to call in question the amendment has also been questioned. It is also setforth that the institutions are free to charge fees from girls' students after the amendment.
26. An application has been filed by the respondents for furnishing additional information in W.P. No. 1104/2000, which need to be referred at the present stage. In the said additional information, it has been staled that the State of Madhya Pradesh has allotted budget of Rs. 225.98 crorcs for the higher education in the year 1997-98; Rs. 259.32 crorcs in 1998-99; Rs. 335.56 crores in 1999-2000; Rs. 359.50 crores in 2000-2001; and Rs. 287.07 crores in 2001-2002. After the amendment came into force, 20% deduction was made in the budget allocation to aided colleges. Certain figures have been made available with regard to the Universities. It has been also stated therein that aided private colleges are 76 (this has been so after bifurcation of the State of Madhya Pradesh) and unaided private colleges are 305. It is putforth that number of students in Govt. Colleges are 2.34 lakhs, in aided colleges 68,000 and in unaided private colleges are 2.61 lakhs. It has been putforth that teachers in Govt. Colleges and Universities are 7746; in aided private colleges 1247. A comparative chart has been given with regard to the State of Andhra Pradesh, Bihar, Gujarat, Maharashtra and Uttar Pradesh. It has been also putforth that a decision has been taken to appoint part-time/contractual teachers in Madhya Pradesh. It is also stated that new courses of studies will be opened on self-financing scheme approved by Jana-Bhagidari Samiti keeping in mind the general guidelines given by All India authorities in different disciplines.
27. A rejoinder affidavit has been filed in W.P. No. 1104/2000. It has been clarified therein that the petitioners have assailed the orders dated 27-5-2000 (Annexurc P-9), 28-10-1999 (Annexure P-13) and 12-1-2000 (Annexure P-15) and the Ordinance published in the Madhya Pradesh Gazette, Extra-ordinary, dated 13-4-2000 (Annexure P-16) and the constitutional validity of the amended Act. It is putforth that appointment of teachers employed in various colleges is made by the State Government in accordance with the procedure laid down and the petitioners from their date of appointment have received salary from the respondents which have been granted by the State Government. It is highlighted that the Statement of Objects and Reasons of the original Act was to eradicate rampant evil and the main object was to ensure payment of full salary to teachers of such educational institutions in time. It has been further pleaded that by virtue of the amendment, a discrimination has been caused which is impermissible in law. It has been setforth that the pica of respondents as regards the financial crisis is nothing but an excuse for their arbitrary action. The respondents have issued various instructions from time to time charging fee towards different heads like building fee, development fee, fee for cultural activities, sports, library, whereas no infrastructure have been issued by the respondents for collection of tuition fee. The fees collected under different heads are fully utilised by the management which is verifiable from the Government Audit Report of the aided institutions. In accordance with the policy of the Government and the institutions, no tuition fee is chargeable from girls' students and where the same has been directed by the State Government to reimburse the tuition fee as incurred by the respective management in relation to the tuition fee of girls' students, but no reimbursement has yet been made by the respondents. The report of the Committee to discontinue aid to the private institutions is nothing but a biased and arbitrary report of the Committee. As pleaded, the Central Government provides financial assistance to the State Government for adopting and implementing the scheme of revision of payscales. For the initial five years U.G.C. gives 80% financial assistance and 20% expenditure is borne by the State Government. For the remaining five years the State Government has to bear 100% financial burden. This norm is being followed by the U.G.C.; and the State Government of M.P. for more than 20 years. But for the first time, the financial liability has been passed over and transferred in terms to college management. The submission of respondents that most of the colleges are running successfully without the aid of the Government is a false and misleading statement, in as much as those colleges are nothing but teaching shops where they take responsibility right from admission to the examination and running in the flats and teachers appointed by them are holding no qualification and, therefore, it cannot be said that they are supplementing the duties of the State. Their selection is on the basis of pick and choose method having no relevance to the qualification. The Government of M.P. has collected a certain sum towards the contributory provident fund of the employee right from the year 1960 and has transferred the same to the pension fund and now at this juncture, after passage of such long span of time, the State Government cannot absolve from its responsibilities to pay the retiral benefits to the petitioners, whereas it is the bounden duty of the respondents to pay pension to the petitioners as it has collected the contributions towards C.P.F. It has been putforth that in accordance with the various clauses of the College Code, the institution cannot collect higher fee and, therefore, it becomes the bounden duty of the Government to provide salaries of teachers of the Non-Government aided institutions. Certain averments have been made with regard to refuting the allegations made in the return relating to Safia Collage, Bhopal to show how the highly qualified persons have been employed in the educational institutions. As putforth, the allegation that private institutions cater to very small number of students in incorrect, inasmuch as due to better quality of education imparted in such institutions, the number of students is quite large and the same is verifiable from the Government records. The shifting of responsibility on the management has been seriously criticized in the rejoinder.
28. Before we proceed to enumerate the various contentions canvassed at the Bar, it is apposite to refer to the history of the concept of grant-in-aid and its codification. Initially, there was in the field "The Unified Rules for Grant-in-aid to Non-Government Educational Institutions in Madhya Pradesh" which came into effect from 1-4-1960, with the object of extending, expanding and improving education. In the said Rules, money was set apart from State's fund to be expanded as grant-in-aid for schools and other educational institutions under Non-Government management. Rule 4 of the said Rules dealt with general conditions for the grant. Rule 5 dealt with various kinds of grant and procedure was also mentioned for the mode of payment of grant. The said Rules also provided the maximum teaching staff and other servants admissible for approval of expenditure for High Schools, Primary Schools and educational institutions other than High Schools and Primary Schools. The "maintenance grant" was provided under Rule 5 in the following wanner:--
"5. The grants shall be of three kinds, viz.,
(i) Maintenance Grant
(ii) *** **
(iii) *** **
(i) Maintenance Grant is a recurring grant for running of an educational institution, it will be sanctioned for a year at time and shall be payable in half yearly instalments. An assessed grant will hold good for two years including the year in which it is assessed, it will not be increased during this period even if the expenditure of the institution has increased, excepting cases, where the increase has been the result of expansion effected with the previous approval of competent authority, the grant will be reassessed after three years on the basis of expenditure of the institution in the preceding three years.
(ii) *** ** (iii) *** **"
29. Rule 31 also comes under heading "Maintenance Grant" and Rule 33 enumerate certain expenses which would be admitted for maintenance grant. The said expenses included establishment pay, dearness allowance and provident fund contribution for admissible staff. Thereafter taking stock of certain fact situation, Act 20 of 1978 (The Madhya Pradesh Ashashkiya Shikshan Sanstha Adhiniyam, 1978) came into existence for regulating payment of salaries to teachers and other employees of Non-Government schools receiving grant-in-aid from the State Government and Non-Government educational institutions for Higher Education receiving grant from M.P. Uchha Shiksha Anudan Ayog and other matters ancillary thereto. After the Act came into force, a set of Rules came into existence called "M.P. Karmachariyon Ki Bharti) Niyam, 1979, and in the Schedule, minimum qualification for recruitment to teaching post in the institution was provided. There was provision also specifying the eligibility criteria for the staff. It is noteworthy to mention here that another set of Rules, called the Madhya Pradesh Ashashkiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Nillamban) Niyam, 1978, came into force w.e.f. 3rd November, 1978.
30. It is apposite to state at this juncture that with the passage of time when the State Government found that the grant was misutilised, it brought out an Amendment Act 24 of 1981 which was called the Madhya Pradesh Ashashkiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam, 1981. The said Act was amended with a purpose so that the teachers get their salary in a regular manner. In fact, the object of the Act was to achieve, as has been stated earlier, to ensure full and regular payment of salary to teachers. At this stage, we think it apposite to refer to a passage from the decision rendered in the case of Siddhi Bala Bose Library Association and Ors v. State of M.P. and others, 1979 MPLJ 379, wherein it was expressed thus:--
"3. The statement of objects and reasons, appended to the Bill (published in M.P. Rajpatra, Extra-ordinary, dated 2nd May, 1978), discloses the rampant evil which is attempted to be eradicated by this legislation. It is stated that the State Government have been receiving complaints that the teachers of Non-Government educational institutions receiving grant-in-aid are not paid full salary and their services are also not secure. It was mainly to ensure payment of full salary to teachers of such educational institutions in time and to provide them security of tenure of service that this legislation has been enacted. This is the main object of the legislation. The problem of the Act shows that it is an Act to make provision for payment of salaries to teachers and other employees of Non-Government schools receiving grant-in-aid from the State Government and Non-Government educational institutions for higher education receiving grants from the M.P. Uchcha Shikshan Anudan Ayog (hereinafter called the Ayog) and other matters ancillary thereto. The provisions of this Act, briefly stated, attempt to achieve this objective.
4. The provisions .of the Act mainly provide for a machinery to ensure payment of full salary to such teachers and other employees in time every month through the treasury, availability of enough funds for the purpose and utilisation of the amount of grant and most of the fees received from the student to make this payment. There are some provisions also to secure the tenure of service of teachers etc. and provide for recruitment of suitable staff. Suitable sanctions are also provided to ensure compliance of these provisions by the management of these private educational institutions. This is the gist of the Act. We shall now refer to the provisions of the Act to some details."
Thus, the purpose was to see that machinery is provided in the most appropriate manner so that the teachers get full salary. We may also refer to the Madhya Pradesh Ashashkiya Shikshan Sanstha (Institution Fund) Rules, 1983 (hereinafter referred to as '1983 Rules'), wherein provision was made for salary to be deposited in the accounts and to see that the teachers do not suffer at the hands of the management. In this context, it is useful to make a reference to the "College Code" (Statute No. 28) wherein the concept of foundation of Society, Governing Body and the duties of the Governing Body have been referred. In the College Code, it has been provided that "Teachers" means members of the teaching staff of a college and includes the Principal, Part VI of the College Code provides with regard to appointment of teachers of the College stipulating qualifications and other criteria. There is provision also for suspension, penalty and disciplinary proceeding. The College Code also deals with Provident Fund and Leave. The College Code also provides that the scales of pay of different categories of teachers in the College including the Principal shall be such as are prescribed from time to time by the State Government for similar categories in Government Colleges.
31. Now we shall proceed to state how the present amendment which is under challenge has come into existence. Initially, there was correspondence between the Union of India and the State Government whereby the Central Government had taken a decision to provide financial assistance to the State Governments which intended to adopt and implement the scheme of revision of payscales subject to terms and conditions as putforth by the Central Government. The said terms and conditions are that the Central Government would provide financial assistance to the State Government which have opted for these revised payscales to the extent of 80% of the additional expenditure involved in the implementation of the revision and the remaining 20% of the expenditure will be met by the State Governments from their own sources. It was indicated that the financial assistance would be provided from 1-1-1996 till 31-3-2000 and thereafter the State Government will take the responsibility of the said expenses w.e.f. 1-4-2000. Initially a statement was made by the Minister of Higher Education on 15-3-1999 that UGC scales of pay would be implemented in the State uniformly without any discrimination to all the teachers including teachers serving in the educational institutions receiving grant-in-aid. Thereafter, the State Government vide letter dated 28-10-1999 imposed conditions that after 1-4-2000, the additional burden due to revision of payscales shall be borne by the respective institutions. The State Government issued order on 12-1-2000 addressing all the Principals of all the aided private colleges compulsorily requiring them to furnish undertaking both from the institution as well as the teachers in token of acceptance of the order of the State Government. As the institutions were not in a position to bear the burden of the revised payscale, they obtained undertaking from the teachers that the institution would not be liable for payment of salary as per the revised payscales.
32. When the matter stood thus and writ petitions were filed, Ordinance No. 2 of 2000 came into existence indicating the amendment in the principal statute and thereafter the amendment was brought into force by way of The Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Sanshodhan Adhiniyam, 2000 (Act 26 of 2000). Thus, in essence it is the validity of the amended statute which has to be scrutinised by this Court.
33. By virtue of the amendment, the nomenclature of the Act has been changed to read as The Madhya Pradesh Ashaskiya Shikshan Sanstha (Anudan Ka Pradaya) Adhiniyam, 1978 and by virtue of Section 7 of the Amendment Act, the amended nomenclature shall be substituted wherever they occur in the Schedule to the Principal Act. The amendment has been made to Sections 2, 5 and 6 and Schedule of the Principal Act. At this juncture, we think it apposite to reproduce in a Chart-form the old provision and the amended provision, for better appreciation:
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34. At this stage, we think it apposite to state that the State of Madhya Pradesh has issued a circular No. 73-16/99/2015, dated 5-8-2000 by amending its previous circulars dated 31-1-2000 and 10-3-2000 as a result of which a situation has emerged where those institutions which have Scheduled Castes and Scheduled Tribes students upto more than 50% or 70% would get 100% grant without any deduction. It has been also brought on record that such institutions will get 100% grant, but the institutions not run by minority would undergo reduction of 20% grant-in-aid every year till five years is completed or till the date of closure. A change with regard to concept of grant in regard to minority institutions has taken place, which we shall refer to at a latter stage.
35. Now we shall advert to the various contentions advanced by learned counsel for the petitioners in support of their writ petitions. We have heard Mr. A.M. Mathur, Mr. S.L. Saxena, Mr. N.S. Kale, Mr. Rajendra Tiwari, Mr. R.P. Agrawal, learned senior counsel, Mr. H.S. Ruprah, Mr. Kuldeep Bhargava, Mr. Kishore Shrivastava, Mr. Sujoy Paul, Mr. Anil Khare, Mr. R.L. Gupta, Mr. R.D. Hundikar and other counsel assisting them. We have heard Mr. V.K. Tankha, learned Advocate General for the State and Mr. N.C. Jain, learned senior counsel, who has appeared for some societies, which have been arrayed as respondents in some of the writ petitions. The contentions raised by the learned counsel for the petitioners are stated in seriatim as under:--
(i) The State Legislature has no competence to legislate in the field as has been done and, therefore, the amendment is invalid in the eye of law.
(ii) There is repugnancy between the amended provisions and the University Grants Commission Act and as there is inconsistency, the sub-stratum of Article 254 of the Constitution is attracted and as that has not been taken care of, the amendment broughtforth is invalid. To elaborate, it has been submitted at the Bar that such amendment could have been done by the Union of India on the basis of Entries 63 to 66 of the Union List-I and not on the foundation of Entry-25 of List III, concurrent list.
(iii) By virtue of the amended provisions, the right to practise any profession or to carry on any occupation, trade or business as enshrined under Article 19(1)(g) of the Constitution has been affected, inasmuch as by such drastic step a cataclysmic situation has been created by which the registered societies have been deprived of the privilege to carry on the occupation which they have been carrying on.
(iv) There is inconsistency between the amended Act and the College Code (Statute No. 28) and certain provisions are still in existence in the Act itself and, therefore, the whole amendment is unworkable.
(v) The amendment defeats the Constitutional obligation cast on the State under the Directive Principles of State Policy and in a welfare State if a law has been enacted by infraction of Directive Principles of State Policy, the same can be nullified on the anvil of the aforesaid parameter.
(vi) The effect of the amendment is to convert the educational institutions to commercial shops which has been condemned by various judgments of the Apex Court and hence, this kind of amendment cannot stand the scrutiny of judicial review and, therefore, has to be declared as ultra vires.
(vii) The amended provision Section 5 does not contain any guidelines and there has been excessive delegation in absence of proper definition of "block grant" and therefore, the amendment has to be axed.
(viii) The amendment scuttles and throttles the basic object of the Principal Act and for that reason alone, the amended provisions are to be lanceted.
(ix) The "grant" is qualified by the term "maintenance" which is the heart and soul and by amendment such limb of the Act cannot be paralysed.
(x) The definition of "institution" has not been changed and, therefore, there is inherent inconsistency in various provisions of the Act which cannot be countenanced.
(xi) The majority of students would be deprived of higher education because of the policy introduced by the State Government and the aided educational institutions would end up in closure.
(xii) By virtue of the amended provision, the entire fees collected have to be deposited in the "institutional fund" as a result of which the educational institution would gradually become defunct and they would have no funds to meet any other ancillary expenses.
(xiii) There is discrimination as the State Government has stated that institutions which are run by religious minority would be granted 100% aid, but not the institutions run by the majority and such an action is discriminatory.
(xiv) There is also discrimination, inasmuch as schools which have admitted more than 50% of students belonging to Scheduled Castes and Scheduled Tribes would get 100% grant, but the same privilege is not conferred on other educational institutions.
(xv) The amendment which has been brought into existence is absolutely arbitrary, irrational and unreasonable which attracts the wrath of Article 14 of the Constitution, inasmuch as the State has taken a stand that the funds which are utilised towards grant-in-aid to the aided educational institutions would be utilised for improvement in Government educational institutions and literacy programme in the rural areas.
(xvi) The stand taken by the State Government that there are more than 300 unaided educational institutions which run institutions on their own without getting any aid from the State Government is a myth, inasmuch as the State has not come forward to say whether they maintain the standard of education and whether they pay salary to their teachers as payable at par with Government teachers. To elucidate, the stand taken by the State Government is factually unsustainable and, in fact, frescoes a picture which amounts to an apology for education.
(xvii) The students have a right to primary education upto the age of 14 and thereafter the higher education is to be provided subject to availability of finance. In the instant case, the State having taken measures to provide education through aided educational institutions, which is an extended arm of the State in the field of imparting education, cannot be allowed to be closed after such a long lapse of time as that would corrode the basis of education.
(xviii) The stand of the State is that the State is spending more than rupees three thousand crore on education and hardly more than rupees seventy five crores on aided educational institutions which impart quality education meeting the standard and, therefore, the plea taken that there has been a financial crunch for which the State has diverted the money for improvement of Government Colleges and Schools does not deserve acceptance and that makes the entire amendment irrational.
(xix) The provision that a teacher is entitled to such remuneration as may be determined by the institution is contrary to the provisions of the law laid down by the Apex Court in number of decisions and hence, the said provision cannot stand deeper scrutiny.
(xx) The teachers which have been working in these educational institutions have accepted the appointment being selected by the agencies of the State Government as there are provisions for selection, approval and suspension whereby the State Government becomes the effective controller of their appointment (though they are not Government servants), but by such amendment, they have been thrown to the streets which is not permissible.
(xxi) Pyramiding the argument, it has been submitted that there may be situation when if State Government or instrumentality of the State may reduce the age of retirement or may invoke the principle of golden handshake, but in the absence of any such provision to ask people to remain at the mercy of the educational institutions affects the livelihood of the teachers which is a part of Article 21 of the Constitution. Attack is also made on the score of unreasonableness.
(xxii) Article 51A of the Constitution of India deals with fundamental duties and if the present amendment is tested on the anvil of the said provision, the same cannot be upheld as such an amendment is a step in regression and no citizen can achieve any excellence if such steps are taken, It is further putforth that nobody can claim grant-in-aid as a matter of right, but once they have been given the same for a period of long 22 years in a systematic manner, stoppage of the same is impermissible in law.
(xxiii) The ultimate impact of the amendment would be closure of the educational institutions which impart primary education as well as secondary education and thereby the students who have a right to be educated upto primary level are deprived of education because of non-availability of the provision or the atmosphere for getting education.
(xxiv) The teachers have the legitimate expectations because of the acceptance of the Government of the U.G.C. Scheme to be treated at par with the teachers doing similar duties working in the educational institutions run by the Government, but the said expectations are atrophied by the conditions imposed by the State Government. The funds which are spent in respect of grant-in-aid meant for aided educational institutions are quite meagre (as has been mentioned in one of the rejoinder-affidavits, 0.94% of the entire budget) and diverting the same to the Government institutions and towards literacy programme is without any justification and per se unreasonable.
36. Mr. V.K. Tankha, learned Advocate General for the State resisted the aforesaid submissions and submitted as under:--
(a) The stand taken by the petitioners that their right to occupation has been affected is of no substance, inasmuch as such a right has not been curtailed as the petitioners are at liberty to run their institutions and no restrictions have been imposed. It is putforth by him that the registered societies cannot expect to carry on occupation at the cost of the State exchequer.
(b) The contention that the State Legislature has no legislative competence to pass a legislation of this nature is devoid of merit, inasmuch as the legislation is covered under Entry-25 of List-III of concurrent List and is within its bounds.
(c) The proponement with regard to repugnancy does not exist as the State Act and the U.G.C. Act cover different fields and, therefore, the basic concept of Article 254 is not attracted and the submission canvassed by the petitioners is like building a castle in Spain.
(d) The submissions raised with regard to promissory estoppel and legitimate expectation have no legs to stand upon as those doctrines are not attracted when a piece of competent legislation is assailed.
(e) The State has to judge its own priorities and when a policy decision has been taken on the priority basis, the same cannot be a matter of judicial review.
(f) The amount which was being spent by giving aid to the educational institutions which include both schools and colleges have been diverted to the development of Governmental educational institutions and literacy programme the same cannot be regarded as a defective policy.
(g) The aided educational institutions operate in urban and semi-urban areas, whereas the fund which has been diverted is meant to encompass the Scheduled Tribe areas and as the larger portion of the State of Madhya Pradesh is occupied by tribals, the amendment serves the larger public interest and, therefore, the smaller public interest has to yield in.
(h) The grant-in-aid is an assistance for some time to the educational institutions to meet their need and it is their obligation to be self-sufficient as the concept of grant-in-aid cannot be a contribution in perpetuity or ad infinitum. Number of unaided educational institutions have been able to impart education on their own strength and if adjudged by that scale, the aided educational institutions cannot claim aid as a matter of right and the propounding of theory of hardship is no ground for nullification of a legislation.
(i) The legislation has come to eradicate the mischief as the funds were not properly handled and the educational institutions were collecting more money from student and had made it a business.
(j) The submission that there has been downfall in the standard of education is not a factor to be taken into consideration to test the constitutionality of the enactment.
(k) The plea of discrimination advanced by the petitioners is devoid of any significance inasmuch as there is intelligible differentia between the two classes, namely, the minority institutions and the institutions run by the majority.
(l) The attack on the ground that 100% grant is given to those educational institutions which have more than 50% of students belong to Scheduled Castes/Tribes is without any basis, as such a classification is permissible keeping in view the special factors and circumstances prevalent in the State of Madhya Pradesh as more than 75% of the populace of Madhya Pradesh belong to Scheduled Castes and Scheduled Tribes.
(m) The contention that the security of teachers are affected is too spacious a ground as the State has no obligation under law to give salary to these teachers and in any case an employment cannot be claimed as a matter of right and hence, Article 21 on that score is not attracted.
(n) The argument that there has been no definition of 'bloc grant' and no guidance has been given in that regard is not to be given any weighment as it has been provided in the amended statute that grant has to be determined from time to time and the notification has been issued indicating that there will be gradual deduction in grant-in-aid so that these societies get themselves equipped to run the institutions.
(o) The challenge that the institutions have been given liberty to collect as much fee as possible is not a sanguine ground to assail the amended provisions.
(p) The stand taken that the teachers can be given any payscale as liberty has been given under the Act does not necessarily mean that they have to be given less than their counterparts in the Government Colleges, but on the contrary, leverage is given to the educational institutions to give more as there is no fixation of any limit.
(q) By virtue of this amendment, the concept of distributive justice has been achieved and it meets the essential requirements of the Directive Principles which are to be followed in a welfare State and hence, the enactment cannot be invalidated.
(r) The financial crunch faced by the State Government has to be taken note of and the Court cannot penetrate into the said sphere as that comes within the policy-making power of the State Government and a Court of law cannot regulate where State Government has to spend and where it has to curtail.
(s) The submission that the State Government is the effective employer is sans substance as the teachers serving in the educational institutions are no way civil servants.
(t) The ground that the notification is bad because of violation of rules is without any basis, as the notification has been issued in terms of the provisions of the amended Act.
(u) Assuming that the amendments are declared ultra vires, that does not necessarily mean that the old provisions will stand revived.
(v) The teachers who are employed by the educational institutions, by no stretch of imagination, can compel the State Government to be remained employed in the selfsame terms, and if they have any grievance, they can proceed against the institutions which have employed them.
37. Before we proceed to deal with the rival contentions, we may clarify at the very outset that certain contentions and submissions do overlap and, therefore, we shall compartmentalise them into various categories and deal with them.
38. First, we shall deal with the legislative competence of the State Legislative, as has been putforth at the Bar. It has been submitted by learned counsel for the petitioners that the State Legislature cannot pass an enactment by which the salary of the teachers can any way be curtailed. We may hasten to add that at this juncture, we are only confining ourselves to the legislative competence of the State Legislature, but not in regard to the impact and effect of the legislation. We have said so, as Mr. V.K. Tankha, learned Advocate General, has strenuously submitted that there is no prohibition or remora that the educational societies cannot give more benefits to the teachers. Be that as it may, we shall dwell upon the legislative competence.
39. It has been urged by learned counsel for the petitioners that Entry-25 of List-III in the Seventh Schedule of the Constitution deals with education with certain riders and qualifiers and for that reason, the State Legislature could not have dealt with this aspect. To appreciate the aforesaid submission, it is apposite to reproduce Entry-25 here:
"25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List-I; vocational and technical training of labour."
40. It is urged by the learned counsel for the petitioners that as the field is covered by relevant entries of List-I, the State Legislature could not have legislated on this score. It is profitable to reproduce Entries-63, 64, 65 and 66 of List-I:
"63. The institutions known at the commencement of this Constitution as the Benares Hindu University, the Aligarh Muslim University and the Delhi University, the University established in pursuance of Article 371E; any other institution declared by Parliament by law to be an institution of national importance.
64. Institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance.
65. Union agencies and institutions for-
(a) professional, vocational or technical training, including the training of police officers, or
(b) the promotion of special studies as research; or
(c) scientific or technical assistance in the investigation or detection of crime.
66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
41. On a perusal of the aforesaid Entries, it is graphically clear that in respect of items covered under the aforesaid Entries, power to legislate is vested exclusively in the Parliament. The Entries in a nutshell provide various facets including determination of standards in institution for higher education. It is not the case here that the State Government has legislated by providing any particular medium of instruction in respect of higher education or research or scientific or technical instructions. It is also not the case where the Legislature has laid down any eligibility qualification which encroaches upon the power of Parliament. In fact, in our considered view, these Entries deal with co-ordination and determination of standards in Universities and various other aspects, but have nothing to do with regard to fixation of salary or reduction in grant-in-aid. None of the Entries in List-I stipulate with regard to salary, but deal with standard or quality of education. On the contrary, the State Legislature has the authority to legislate in respect of education subject to these Entries and when these Entries do not deal with anything in respect of salary or aid or anything ancillary thereto, we are of the considered view that the submission that the State Legislature has no competence to legislate on that score is without any substance and accordingly, we repel the same.
42. The next aspect which has been highlighted is that there is repugnancy between the U.G.C. Act and the enactment passed by the State Government and as assent under Article 254 of the Constitution has not been taken, the legislation has to be declared ultra vires. We have carefully perused the provisions enumerated in the University Grants Commission Act, 1956. Section 2 of the said Act defines certain aspects. Section 3 stipulates application of the Act to institutions for higher studies other than Universities. Chapter-II of the Act deals with establishment of Commission, composition of the Commission, terms and conditions of service of members and other aspects of the Commission. Chapter-Ill deals with powers and functions of the Commission. Chapter-IV deals with miscellaneous provisions. On taking a close-up of the provisions we have not perceived any provision which prescribes salary meant for teachers of higher educational institutions. In this context, we may refer to Article 254 which reads as under:--
"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.-
(1) If any provision of a law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his an assent, prevail in that State :
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."
43. On an X-ray of the aforesaid Article, it is quite perceptible that the Parliament is competent to enact any provision dealing with Entry-25 and could have provided "salary", but the Parliament has not done so far. The learned counsel for the petitioners impressed upon us that under the University Grants Commission Act, there are guidelines which give immense emphasis on the quality of education and quality of education is not achievable if proper salary/remuneration is not paid. Pyramiding the said submission, it is putforth by them that on a closer scrutiny of the provisions of the U.G.C. Act it becomes plain as day that the salary is regulated by the U.G.C. Act and that cannot be curtailed by legislating in the manner as has been done by the State Legislature. We are afraid, the aforesaid submission, albeit, looks quite attractive, but has no legs to stand upon, inasmuch as a deduction or inference of this nature has no permissibility in law unless there has been categorical provision in that regard.
44. In this regard we may notice the decision rendered in the case of Jaya Gokul Educational Trust etc. v. Commissioner & Secretary to Government, Higher Education Department, Thiruvananthapuram, Kerala State and another, etc., (2000) 5 SCC 231, which has been relied upon by the learned counsel for the petitioners. The counsel have drawn the attention of this Court to para 11 of the said judgment and have also laid emphasis on Paragraphs 16, 17 and 27. We may profitably refer to Paragraph 27 :
"27. The so-called 'policy' of the State as mentioned in the counter-affidavit filed in the High Court was not a ground for refusing approval. In Thirumuruga Kirupananda & Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v. State of T.N., (1996) 3 SCC15, which was a case relating to medical education and which also related to the effect of a Central Law upon a law made by the State under Entry 25 List III, it was held (at SCC p. 35, para 34) that the 'essentially certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now rests with the Central Government alone'.
Therefore, the State could not have any 'policy' outside the AICTE Act and indeed if it had a policy, it should have placed the same before AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and Regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval was granted by AICTE of if the State felt that some conditions attached to the permission and required by AICTE to be complied with, were not complied with, then the State Government could always write to AICTE, to enable the latter to take appropriate action."
45. On a reading of the decision in entirety, the ratio that follows is that the State Government cannot have its policy outside the Central Act. But in the case at hand, the amendment, which is a policy decision of the State Government does not encroach upon the territory of the Central Legislation and hence, reliance on the said decision is absolutely misconceived. Thus, we do not notice any repugnancy between the Act in question and the U.G.C. Act. Resultantly, we reject the submission of the learned counsel for the petitioners on this score.
46. The next submission which has been canvassed by the counsel for the petitioners in a most strenuous manner is that the right of the registered societies to run their occupation has been jeopardised and hence, their right under Article 19(1)(g) of the Constitution has been irreparably affected. Mr. A.M. Mathur, learned counsel, as well as other learned counsel for the petitioners have seriously contended that by virtue of the provision which requires the petitioners institutions to deposit the entire money collected towards fees in the "institutional fund", the right to run the institutions is marred and hence, there is flagrant violation of Article 19(1)(g) of the Constitution. We may hasten to state that as far as this specific aspect is concerned, we will deal with it at a latter stage on a different context, but in praesenti, we will delve upon the facet whether the right of the societies to carry on their profession/occupation, trade or business has been mutilated.
47. On a scrutiny of the provisions, it is plain as noon day that there is no provision whatsoever impairing the rights of the educational institutions to run their schools. Running of the schools has not been stopped. In this context we may profitably refer to the decision rendered in the case of Unni Krishnan, J.P. and Ors., etc. etc. v. State of Andhra Pradesh and Ors. etc. etc., AIR 1993 SC 2178, wherein the Constitution Bench while dealing with the aspect of right to establish an educational institution came to hold that establishing an educational institution can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g) of the Constitution of India. White so saying, their Lordships held as under:--
"168. For the purpose of these cases, we shall proceed on the assumption that a person or body of persons has a right to establish an educational institution in this country. But this right, we must make it clear, is not an absolute one. It is subject to such law as may be made by the State in the interest of general public."
48. After so saying, their Lordships proceeded to state in the subsequent paragraph that right to establish an educational institution does not carry with it the right to recognition or the right to affiliation. Their Lordships further stated that no Government, authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions, as doing so would amount to abdicating its obligations enjoined upon it by Part-II of the Constitution. In the said decision, their Lordships further held as under:--
"A citizen of this country may have a right to establish an educational institution but no citizen, person or institution has a right must less a fundamental right, to affiliation or recognition, or to grant-in-aid from the State. The recognition and/or affiliation shall be given by the State subject only to the conditions set out in, and only in accordance with the scheme contained in Part-Ill of this Judgment. No Government/University or authority shall be competent to grant recognition or affiliation except in accordance with the said scheme. The said scheme shall constitute a condition of such recognition or affiliation, as the case may be, in addition to such other conditions and terms which such Government, University or other authority may choose to impose.
Those receiving aid shall, however, be subject to all such terms and conditions, as the aid giving authority may impose in the interest of general public."
49. In view of the aforesaid pronouncement of law, there remains no scintilla of doubt that the contention putforth by the learned counsel for the petitioners that their right has been curtailed to run the educational institutions and it has been affected beyond repairs is devoid of any substance. In our considered view, there has been no violation of Article 19(1)(g) of the Constitution.
50. The next aspect which has been highlighted by the learned counsel for the petitioners is that the initial Act has been received presidential assent, but the amended Act has been brought without obtaining the prior assent of the President. We have already held that there has been no repugnancy between any State Law and Central Law and the State Legislature has the competence to legislate in this regard in praesenti, True it is, the initial Act was brought into existence by obtaining the Presidential assent, and that might have been done by way of abundant caution but that does not make it necessitus that any amendment brought should be made after obtaining prior assent of the President as that is not the requirement of law. Therefore, on that ground, the legislation cannot be challenged. Accordingly, we are not disposed to accept the contention of the learned counsel for the petitioners in this regard.
51. It is contended by the learned Advocate General for the State that the petitioners being educational institutions and some of them being teachers have no locus standi to canvass the cause of the students. Mr. Tankha has given immense emphasis on this aspect while urging his contention meeting the submissions raised by the learned counsel for the petitioners in regard to infringement of the right enshrined under Article 21 of the Constitution. Having giving our anxious consideration to the aforesaid submission we are of the considered opinion that educational institutions can irrefragably canvass the cause of the students and we can not take a narrow view that as the students are not before us the said aspect can not be adverted to. Resultantly, we do not accept the submission of Mr. Tankha on the said score.
52. The next ground of challenge is relatable to the concept of promissory estoppel. Learned counsel for the petitioners have placed reliance on the decisions rendered in the cases of M.P Sugar Mills v. State of U.P., 1979 SC 621 and Amrit Banaspati Co. Ltd. and Anr. v. State of Punjab and Anr., (1992) 2 SCC 411. That apart some other decisions were also cited which we need not dwell upon. It is well settled in law that a price of legislation can not be challenged on the ground of promissory estoppel. Hence, we are of the considered opinion the aforesaid submission does not merit any consideration.
53. The next limb of argument relates to arena of legitimate expectation which has been canvassed with vehemence before us. It is urged that the State Government had taken a particular role in the sphere of education creating an expectation in the minds of teachers and, therefore, they can legitimately expect to get the benefit and the same can not be denied to them. The learned counsel for the parties have placed reliance on the decisions rendered in the cases of Food Corporation of India v. Mis. Kamdhenu Cattle Feed Industries, (1983) 1 SCC 71 and National Building Construction Corporation v. S. Raghunathan and Ors., (1998) 7 SCC 67. In the case of National Buildings Construction Corporation (supra), their Lordships referred to the earlier decision and came to hold as under:--
"20. Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service, laid down that the doctrine of "legitimate expectation" can be invoked if the decision which is challenged in the Court has some person aggrieved either (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-. maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that it should not be withdrawn.
21. The Indian scenario in the field of "legitimate expectation" is not different. In fact, this Court in several of its decisions, has explained the doctrine in no uncertain terms."
54. It is thought apposite to state here that their Lordships expressed the opinion that the doctrine of legitimate expectation is also procedural in character and assures fair play in administrative action, it may, in a given situation, be enforced as a substantive right. Upon consideration of the aforesaid decisions we are not able to accept the contention of the learned counsel for the petitioners that the principle of legitimate expectation can be invoked to assail the constitutional validity of an enactment.
55. Mr. Tankha has drawn our attention to the Article 337 of the Constitution which provides as under:--
"337. Special provision with respect to educational grants for the benefit of Anglo-Indian community.-
During the first three financial years after the commencement of this Constitution, the same grants, if any, shall be made by the Union and by each State..... for the benefit to the Anglo-Indian community in respect of education as were made in the financial year ending on the thirty-first day of March, 1948. During every succeeding period of three years the grants may be less by ten percent than those for the immediately preceding period of three years :
Provided that at the end of ten years from the commencement of this Constitution such grants to the extent to which they are a special concession to the Anglo-Indian community, shall cease:
Provided further that no educational institution shall be entitled to receive any grant under this article unless at least forty per cent of the annual admissions therein are made available to members of communities other than the Anglo-Indian community."
56. It is putforth by Mr. Tankha, that when the Constitution had mandated grant for institutions run by Anglo-Indian community for ten years a grant or aid can not be conceded for an indefinite period and no educational institution or teacher can claim such grant as a matter of right. The aforesaid submission has an inherent fallacy. The said provision was a part of the Constitution for a fixed term keeping in view the factual background obtaining at the time of framing of the Constitution. The said grant and nature of grant given under the Act in question are quite different and distinct and hence, we are unable to persuade overselves to accept the aforesaid submissions of Mr. Tankha. Resultantly, we repel the same.
57. Mr. V.K. Tankha, learned Advocate General has also supported the amendment by contending that the societies which run educational institutions cannot give a threat that by virtue of amendment they would be compelled to close the schools as such a threat has no significance. The learned senior counsel has placed heavy reliance on the case of Frank Anthony Public School Employees' Association v. Union of India and Ors., AIR 1987 SC 311 and has drawn the attention of this Court to the last paragraph of the said decision. We may profitably reproduce the same:
"We must refer to the submissions of Mr. Frank Anthony regarding the excellence of the institution and the fear that the institution may have to close down if they have to pay higher scales of salary and allowances to the members of the staff. As we said earlier the excellence of the institution is largely dependent on the excellence of the teachers and it is no answer to the demand of the teachers for higher salaries to say that in view of the high reputation enjoyed by the institution for its excellence, it is unnecessary to seek to apply provisions like Section 10 of Delhi School Education Act to the Frank Anthony Public School. On the other hand, we should think that the very contribution made by the teachers to earn for the institution the high reputation that it enjoys should spur the management to adopt at least the same scales of pay as the other institutions to which Section 10 applies. Regarding the fear expressed by Shri Frank Anthony that the institution may have to close down we can only hope that the management will do nothing to the nose to spite the face, merely to 'put the teachers in their proper place'. The fear expressed by the management here has the same ring as the fear expressed invariably by the management of every industry that disastrous results would follow which may even lead to the closing down of the industry if wage scales are revised."
58. It is worthnoting here that in the said case their Lordships were considering the privilege claimed by minority institutions and dealing with the parity of pay scale of the teachers serving in the said schools and teachers of Government schools. In that context the aforesaid observation was made. In view of this we are of the considered opinion that the said decision does not render much assistance to the learned counsel for the State and in any case the factual scenario in that case was quite different and case at hand exposits a different factual matrix. Here the educational institutions have been getting the aid from last 40 years. Initially by set up of Rules and thereafter by a statutory enactment and the State had almost taken over the duty to pay salary to the teachers imparting education in those schols and colleges and in view of this the State can not be allowed to take a total somersault to metamorphose the situation which eventually lead to closure of the educational institutions affecting the rights of the students as well as the teachers as would be dealt with hereinafter. Accordingly we are not pursuaded by the submission of Mr. Tankha that if the educational institutions are closed it would be fault of the societies which are running the same and not that of the State. We are of the considered view such a submission is too late in the day to deserve acceptance.
59. The next plank of argument relates to the concept of "grant" and various other changes that have taken place by virtue of the amendment. It is canvassed by the learned counsel appearing for the petitioners that there has been a trans-substantiation and metamorphosis as a result of which the whole statute has become unworkable. We need not answer this contention in the manner it has been posed, but we shall advert to it while dealing with the main attack on the Act, namely, the amending provisions are irrational, unreasonable, arbitrary and non-progressive.
60. Now presently, we shall proceed to state the contention whether by virtue of the amendment, the Legislature has introduced certain things which are absolutely unreasonable and irrational so as to attract the wrath of Article 14 of the Constitution. Before we delve into this arena, we would like to refer to the amended provisions which have been referred to earlier. On a perusal of the dictionary clause of the earlier Act, "maintenance grant" meant the grant payable to the institution by the State Government. The said definition has been changed to mean, a grant given to the institution as may be fixed by the State Government from time to time. The definition "Teacher" has undergone a sea-change. The term "salary" in the unamended Act included pay, dearness allowance, but presently it has undergone a change to mean, salary and other allowances payable to a teacher or an employee at the rate as may be notified by the institution. Then comes the constitution of "institutional fund" and the "fee collectable from students". It is urged by the learned counsel for the petitioners that by change of definitions of "Teacher" and "salary", the State Government has, in fact, abolished the "grant" in a phased manner as the notification would indicate and has left the teachers at the mercy of the institution. It is proponed by them that educational institutions may provide any salary to the teachers as may be notified by the institution. It is putforth by them that the same runs contrary to the "College Code" as the College Code stipulates that the salary has to be paid at par with a Government teacher. It is submitted by Mr. Tankha that there is no prohibition that the institutions would be at liberty to pay more.
61. Before we dwell upon the aforesaid facets, we would like to refer to certain decisions cited at the Bar with regard to the concept of grant-in-aid and payment of salary. We are conscious that the said decisions were rendered in a different context where rules or the executive instructions have been in vogue, but in the instant case, there has been amendment. Nonetheless, the decisions are required to be referred to as they have from time to time laid down the principles keeping in view the social ethos and the constitutional obligation.
62. In the case of Frank Anthony Public School Employees' Association v. Union of India and Ors., AIR 1987 SC 311, the Apex Court came to hold that oppression or exploitation of the teaching staff or treating them as ordinary labourers has to be eradicated. In the case of Haryana State Adhyapaka Sangh v. State of Haryana, AIR 1988 SC 1663, the Apex Court gave emphasis on the treatment of parity of teachers serving in aided educational institutions and the Government educational institutions. We may also profitably refer to the decision rendered in the case of A.N. Parasuraman Etc. v. State of Tamil Nadu, AIR 1990 SC 40. In theaforesaid case, the Apex Court held as under:--
"The purpose of the Act is said to regulate the private educational institutions but does not give any idea as to the manner in which the control over the institutions can be exercised, the preamble which describes the Act 'for regulation' is not helpful at all. Section6 which empowers the competent authority to grant or refuse to grant the permission for establishing and running an institution does not give any idea as to the conditions which it has to fulfil before it can apply for permission under the Act, nor are the tests indicated for refusing permission or cancelling under Section 7 of an already granted permission. The authority concerned has been left with unrestricted and unguided discretion which renders the provisions unfair and discriminatory. The Act, beyond requiring the applicant to make a factual statement about the matters enumerated in Section 4, does not direct the institution to make provisions for them (or for any or some of them) as condition for grant of permission. The maintenance of any particular standard of these heads is not in contemplation at all, although certain other aspects, not so important, have been dealt with differently in several other sections including Sections 4, 5, 9, 10 and 11. There is no indication, whatsoever, about the legislative policy or the accepted rule of conduct on the vital issue about the maintenance of academic standard of the institution and the other requirements relating to the building, library and necessary amenities for the students, as the Act is absolutely silent about the criteria to be adopted by the prescribed authority for granting or refusing permission. The rules which were made under Section 27 in 1968 and called the Tamil Nadu Private Educational Institutions (Regulation) Rules, 1968 are not called upon to lay down any norm on these issues and naturally do not make any reference to these aspects. The result is that the power to grant or refuse permission is to be exercised according to the whims of the authority and it may differ from person to person holding the office.
The danger of arbitrariness is enhanced by the unrestricted and unguided discretion vested in the State Government in the choice of 'competent authority' defined in Section 2 (2) (c). The second ground on which the authority can exercise its power to cancel permission being contravention "of any direction issued by the competent authority under this Act" again suffers from the vice or arbitrariness....."
(Quoted from the placitum)
63. In this regard, we may usefully refer to the decision rendered in the case of State of Maharashtra v. Manubhai Pragaji Vashi and Ors., (1995) 5 SCC 730. In the aforesaid case, their Lordships adverted to Article 21 read with Article 39 of the Constitution and dealt with extending grant-in-aid to recognised private law colleges. Considering the totality of circumstances, their Lordships after taking note of the budget relating to primary education, secondary education, higher education, technical education and other education, in Paragraphs 13 and 17 expressed in the following manner:
"13. The facts stated above amply bring out the fact that recognised private law colleges alone were singled out for hostile discriminatory treatment. The recommendations of the committee (pp. 198-208) to apply the new formula for the grant to private law colleges and the resolution adopted by the Government to extend the UGC scales to teachers of law colleges (pp. 86-87) remained only in 'paper' and no concrete steps were taken to implement them. It is not explained as to why recognised private law colleges alone are disentitled to receive grants-in-aid from the Government. The burden of proof cast on the State, that discrimination against recognised private law colleges is based on a reasonable classification having nexus to the object sought to be achieved, has not been discharged. The High Court has held so, placing reliance on the decisions of this Court reported in Budhan Choudhry v. State of Bihar, AIR 1955 SC 191; Express Newspaper (P) Ltd. v. Union of India, AIR 1958 SC 578; Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942; Babulal Amthalal Mehta v. Collector of Customs, AIR 1957 SC 877 and D.S. Nakara v. Union of India, (1983) 1 SCC 305 : (AIR 1983 SC 130). We hold that the aforesaid reasoning and conclusion of the High Court is fully justified and no exception can be taken to the decision so arrived at by the High Court. The High Court has further referred to the plea of paucity of funds pleaded by the State and has held that paucity of funds can be no reason for discrimination, placing reliance on the decision of this Court in Municipal Council v. Vardichan, (1980) 4 SCC 162: (AIR 1980 SC 1622). This reasoning of the High Court is also fully justified and no exception can be taken to the said proposition as well. We hold so."
***** "17. In the light of the above, we have to consider the combined effect of Article 21 and Article 39A of the Constitution of India. The right to free legal aid and speedy trial are guaranteed fundamental rights under Article 21 of the Constitution. The preamble to the Constitution of India assures "justice, social, economic and political". Article 39A of the Constitution provides 'equal justice' and 'free legal aid'. The State shall secure that the operation of the legal system promotes justice. It means justice according to law. In a democratic polity, governed by rule of taw, it should be the main concern of the State, to have a proper legal system. Article 39A mandates that the State shall provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The principles contained in Article 39A are fundamental and cast a duty on the State to secure that the operation of the legal system promotes justice, on the basis of equal opportunities and further mandates to provide free legal aid in any way by legislation or otherwise, so that justice is not denied to any citizen by reason of economic or other disabilities. The crucial words are (the obligation of the State) to provide free legal aid 'by suitable legislation or by schemes' or 'in any other way', so that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The above words occurring in Article 39A are of very wide import. In order to enable the State to afford free legal aid and guarantee speedy trial, a vast number of persons trained in law are essential. Legal aid is required in many forms and at various stages, for obtaining guidance, for resolving disputes in Courts, Tribunals or other authorities. It has manifold facets. The explosion in population, the vast changes brought about by scientific, technological and other developments, and the all-round enlarged field of human activity reflected in modern society, and the consequent increase in litigation Courts and other forums demand that the service of competent persons with expertise in law is required in many stages and at different forums or levels and should be made available. The need for continuing and well organised legal education, is absolutely essential reckoning the new trends in the world order, to meet the overgrowing challenges.
The legal education should be able to meet the ever-growing demands of the society and should be thoroughly equipped to cater to the complexities of the different situations. Specialization in different branches of the law is necessary. The requirement is of such a great dimension, that sizeable or vast number of dedicated persons should be properly trained in different branches of law, every year by providing or rendering competent and proper legal education. This is possible only if adequate number of law colleges with proper infrastructure including expertise law teachers and staff are established to deal with the situation in an appropriate manner. It cannot admit of doubt that, of late there is a fall in the standard of legal education. The area of 'deficiency' should be located and correctives should be effected with cooperation of competent persons before the matter gets beyond control. Needless to say that reputed and competent academics should be taken into confidence and their services availed of, to set right matters. As in this case, a sole Government Law College cannot cater to the needs of legal education or requirement in a city like Bombay. Lack of sufficient colleges called for the establishment of private law colleges. If the State is unable to start colleges of its own, it is only appropriate that private law colleges, which are duly recognised by the University concerned and/or the Bar Council of India and/or other appropriate authorities, as the case may be, should be afforded reasonable facilities to function effectively and in a meaningful manner. That requires substantial funds. Under the label of self-financing institutions, the colleges should not be permitted to hike the fees to any extent in order to meet the expenses to provide the infrastructure and for appointing competent teachers and staff. The private law colleges, on their own may not afford to incur the huge cost required in that behalf. The 'standard' of legal education and discipline is bound to suffer. It should not so happen for want of funds. The 'quality' should on no account suffer in providing free legal aid and if it is not so, 'the free legal aid' will only be a farce of make believe or illusory or a meaningful ritual. That should not be. It is in that direction the grants-in-aid by the State will facilitate and ensure the recognised private law colleges to function effectively and in a meaningful manner and turn out sufficient number of well-trained or properly equipped law graduates in all branches year after year.
That will in turn enable the State and other authorities to provide free legal aid and ensure that opportunities for securing justice are not denied to any citizen on account of any disability. These aspects necessarily flowing from Articles 21 and 39A of the Constitution were totally lost sight of by the Government when it denied the grants-in-aid to the recognised private law colleges as was afforded to other faculties. We would add that the State has abdicated the duty enjoined on it by the relevant provisions of the Constitution aforesaid. In this perspective, we hold that Article 21 read with Article 39A of the Constitution mandates or casts a duty on the State to afford grants-in-aid to recognised private law colleges, similar to other faculties, which qualify for the receipt of the grant.
The aforesaid duty cast on the State cannot be whittled down in any manner, either by pleading paucity of funds or otherwise. We make this position clear."
64. It is worthnoting here that in the case of State of Haryana v. Ramchander, (1997) 5 SCC 253, the Apex Court expressed the view that there cannot be disparity between the teachers who impart education in different mediums. In this regard we may profitably refer to the decision rendered in the case of Chandigarh Administration and others v. Rajni Vali and Ors., (2000) 2 SCC 42, wherein, D.P. Mohapatra, J., speaking for the Court expressed the view as under:--
"6. The position has to be accepted as well settled that imparting primary and secondary education to student is the bounden duty of the State Administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the State has enacted statutes and framed rules and regulations to control/regulate establishment and running of private schools at different levels. The State Government provides grant-in-aid to private schools with a view to ensure smooth running of the institution and to ensure that the standard of teaching does not suffer on account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standards of teaching in any educational institution. Keeping in mind these and other relevant factors for setting fight any discriminatory treatment meted out to teaching and non-teaching staff of a particular institution or a class or institutions to notice a few such decisions on the point, we may refer to the case of Haryana State Adhyapak Sangh v. State of Haryana, (1984) 4 SCC 571 : (AIR 1988 SC1663) in which this Court issued a direction that the State Government will also take up with the management of the aided schools the question of bringing about parity between the teachers of aided schools and the teachers of Government Schools for the period following that to which the thirty-five instalments relate, so that a claim for payment may be evolved after having regard to the different allowance claimed by the petitioners. In the case of Haryana State Adhyapak Sangh v. State of Haryana, 1990 Supp. SCC 306 : (AIR 1990 SC 968) a Bench of three learned Judges of this Court clarifying the judgment in Haryana State Adhyapak Sangh v. State of Haryana, (1988) 4 SCC 571, issued a direction, inter alia, that the parity in the pay scales and dearness allowance of teachers employed in aided schools and those employed in Government schools shall be maintained and with that end in future the pay scales of teachers employed in Government Schools shall be revised and brought on a par with the aided schools and dearness allowance payable to the teachers employed in Government schools with effect from 1-1-1986."
Again, in Paragraph 10, their Lordships ruled thus;--
"10. Coming to the contention of the appellants that the Chandigarh Administration will find it difficult to bear the additional financial burden if the claim of respondents 1 to 12 is accepted, we need only say that such a contention raised in different cases of similar nature has been rejected by this Court. The State Administration cannot shirk its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources. It is for the authorities running the administration to find out the ways and means of securing funds for the purpose. We do not deem it necessary to consider this question in further detail. The contention raised by the appellants in this regard is rejected. It is, however, clarified that the proportion in which the addition burden will be shared by the Chandigarh Administration and the Management of the School will be in accordance with the grant-in-aid scheme applicable to the School from time to time. The judgment of the High Court that the sharing of the financial burden will be in the ratio of 95% to 5% is modified accordingly."
65. We may now refer to the Constitution Bench decision rendered in the case of Unni Krishnan v. State of Andhra Pradesh and Ors., (1993) 1 SCC 645. We may refer to the said decision in extenso while we shall be dealing with Article 21 of the Constitution, but presently we shall advert to the emphasis given in the said judgment on "education and the role of the State in the matter of education". Mohan, J., concurring with Jeevan Reddy, J., in Paragraphs 13 and 14 of the judgment (as per AIR) held as under:--
"13. In the context of a democratic form of Government which depends for its sustenance upon the enlightenment of the populace, education is at once a social and political necessity. Even several decades ago, our leaders harped upon universal primary education as a desideratum for national progress. It is rather said that in this great land of ours, where knowledge first lit its torch and where the human mind soared to the highest pinnacle of wisdom, the percentage of illiteracy should be appalling. Today, the frontiers of knowledge are enlarging with incredible swiftness. The foremost need to be satisfied by our education is, therefore, the eradication of illiteracy which persists in a depressing measure. Any effort taken in this direction cannot be deemed to be too much.
14. Victories are gained, peace is preserved, progress is achieved, civilisation is built up and history is made not on the battlefields where ghastly murders are committed in the name of patriotism, not in the Council Chambers where insipid speeches are spun out in the name of debate, not even in factories where are manufactured novel instruments to strangle life, but in educational institutions which are seeds-beds of culture, where children in whose hands quiver the destinies of the future, are trained. From their ranks will come out when they grow up, statesmen and soldiers, patriots and philosophers, who will determine the progress of the land."
66. Jeevan Reddy, J., speaking for himself and on behalf of Pandian, J., in Paragraph 162 of the judgment held as under:--
"162. Private educational institutions may be aided as well as unaided. Aid given by the Government may be cent per cent or partial. So far as aided institutions are concerned, it is evident, they have to abide by all the rules and regulations as may be framed by the Government and/or recognising/affiliating authorities in the matter of recruitment of teachers and staff, their conditions of service, syllabus, standard of teaching and so on. In particular, in the matter of admission of students, they have to follow the rule of merit and merit alone subject to any reservations made under Article 15. They shall not be entitled to charge any fees higher than what is charged in Governmental institutions for similar courses. These are and shall be understood to be the conditions or grant of aid. The reason is simple : public funds, when given as grant - and not as loan - carry the public character wherever they go. Public funds cannot be donated for private purposes. The element of public character necessarily means a fair conduct in all respects consistent with the constitutional mandate of Articles 14 and 15. All the Governments and other authorities in charge of granting aid to educational institutions shall expressly provide for such conditions (among others), if not already provided, and shall ensure compliance with the same. Again aid may lake several forms. For example, a medical college does necessarily require a hospital. We are told that for a 100 seats medical college must be a fully equipped 700 bed hospital. Then alone the private medical college can be allowed to function. A private medical college may not have or may not establish a hospital of its own. It may request the Government and the Government may permit it to avail of the services of a Government hospital for the purpose of the college free of charge. This would also be a form of aid and the conditions aforesaid have to be imposed may be with some relaxation in the matter of fees chargeable as observed. The Governments (Central and State) and all other authorities granting aid shall impose such conditions forthwith, if no already imposed. These conditions shall apply to existing as well as proposed private educational institutions.
67. Their Lordships also gave emphasis on progressive upliftment of education. Their Lordships further gave emphasis on progression of the educational system. We may hasten to add that in the said case, their Lordships have held that education has to be provided as a matter of right to children upto 14 years and thereafter it is circumscribed by limits of economic capacity of the State. In this context we may profitably reproduce Paragraph 149 of the said judgment:
"149. In the light of the above enunciation, the apprehension expressed by the counsel for the petitioners that by reading the right to education into Article 21, this Court would be enabling each and every citizen of this country to approach the Courts to compel the Stale to provide him such education as he chooses, must be held to be unfounded. The right to free education is available only to children until they complete the age of 14 years. Thereafter, the obligation of the State to provide education is subject to the limits of its economic "Capacity and development. Indeed, we are not stating anything new. This aspect has already been emphasized by this Court in Francis C. Mullin v. Administrator, Union Territory of Delhi, (1981) 2 SCR 516 : (AIR 1981 SC 746). While elaborating the scope of the right guaranteed under Article 21, this Court stated:
'But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes right to live with human dignity and all that goes along with it viz., the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about the mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must in any view of the matter, include a right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the humanself."
68. It has been canvassed by the State that many non-aided and Government institutions are imparting education in the State. Their numbers have already been indicated hereinbefore. The aforesaid data appears quite impressive and persuasive but fact remains nothing has been stated what is the infrastructure in respect of those educational institutions. Nothing has been mentioned how much salary is paid to the teachers. In this context we arc inclined to state that in certain cases it has been brought to the notice of this Court that unaided educational institutions, mainly schools, run in two roomed houses having no infrastructure. In W.P. No. 2104/2001 where certain allegations were made with regard to functioning of the school a commission was appointed by this Court and commission gave a report which is startling and disquieting. However, we are conscious the said report was submitted in a different context. We think it is apposite to refer to the decision rendered in W.P. No. 2104/2001 wherein one of us (Dipak Misra, J.) after noting down certain facts on 3-9-2001 passed the following order:--
"It is submitted by the Chairman of the Board that no further recognition is being granted to the B.N.D. Higher Secondary School, Baretikala, Distt. Rewa. It is worthnoting here that the Principal of the said school, who appeared personally on the last occasion, made a statement in Court that he has been suffering from mental disorder since 1996. This fact is not disputed by Mr. A.K. Mishra, learned Dy. A.G. for the State, who was present on that day. The Principal of the said school is present and is represented by Mr. Alok Bakshi. Ills further submitted by Mrs. J. Choudhary, learned counsel appearing for the Board that the recognition of the said school had already been withdrawn.
Be that as it may, as the State of affairs with regard to these private educational institutions, are not, as presently observed, conducive for imparting proper education, which is meant to illumine young minds and pave the path of their future, it is thought apposite to have an affidavit sworn to by the Principal Secretary of the Department of School Education, which shall contain the fact that how many schools have been granted permission and what has formed the base/foundation/bed rock for grant of such permission. The Chairman of the Board shall also file an affidavit to indicate on what basis recognition is granted to the educational institutions and on what basis the recognition of the school in question has been withdrawn.
Call on 26-9-2001. On which date the Principal Secretary, Department of School Education, the Chairman of the Board of Secondary Education and the Principal, respondent No. 3, herein, shall remain personally present before this Court."
69. In the said case on 26-9-2001 the Court took note of the affidavit of the Principal Secretary, Department of School Education, the affidavit filed by the Chairman of the Board of Secondary Education, and further taking note of the submission of the learned Advocate General that a proposal has been submitted by the Committee and further taking note of the factual scenario which was putforth, in Paragraphs 6, 7 and 8 directed as under:--
"6. Another facet arose in this case with regard to the number of candidates whose names were forwarded by the respondent No. 3 for appearing in class Xth and Class XIIth examinations. It is not disputed at the Bar, that for class XII more than 500 and for class Xth more than 600 names were sent for appearing in the examination. It was putforth by the Chairman of the Board that in addition to the aforesaid students, there are students who are prosecuting their studies in the school in classes IXth and XIth, and also in other classes. It is submitted by her that one section has to accommodate only 45 students. When a query was made to the respondent No. 3 that how many rooms are there in the school, he replied that there arc 10 rooms. On the basis of the aforesaid answer it is difficult to fathom as to how many students have been prosecuting their studies as regular students in that school. It can not be lost sight of the fact that a school to get permission from the Government and recognition from the Board after satisfying certain norms. The size of the rooms, the number of teachers and many other factors have to be kept in mind.
7. I may hasten to add that this is a prima facie appreciation of the factual scenario. But when this has been brought to the notice of this Court, it cannot be a silent spectator. It is to be borne in mind that in a number of cases the Board has alleged fraud by the heads of the educational institutions and the people who run the schools. It is well settled in law that fraud vitiates every thing and every act be it temporal or celestial. History records that it is the education and education alone that can be the backbone of progress of a country. That is the elan vital of any civilisation. This Court can not turn a Nelsons's eye to the obtaining factual matrix. Playing possum to a fact situation by anyone is never appreciated. Not for nothing it has been said that seeing things which are perceptible and to ignore it, is nothing but a manifestation of evil conscience. Neither the State nor the Board of Secondary Education can put the blame on each other, and in the name of liberalisation of education do certain acts which tantamount to commercialisation of education. Imparting education can never be equated with profit oriented business. It is neither commerce nor business. It is a spiritual duty a sacrosanct act to be performed with rigorous spiritual endeavour and sacred vision. The concept of egoity has to succumb for the betterment of the educational institutions. A society cannot be permitted to run an educational institution without the infrastructure, as that would be an apology for imparting education. A Court of law cannot countenance that moreso, when the regulations speak otherwise.
8. Keeping in view the aforesaid, it is thought apposite that a Commission has to be appointed which shall go to the school in question and find out with regard to the following aspects:--
(i) Strength of the students, who are prosecuting their studies in the classes Ist to VIIIth;
(ii) Strength of the students who have taken admission for the pursuing their academic sessions in Classes IX to XIIth;
(iii) the number of class-rooms which the school premise has, and how many sections are in existence in all the classes;
(iv) the strength of the teachers and their qualifications; and
(v) the Admission Registers, indicating the time of admission and the strength indicated therein."
70. In pursuance of the said order Secretary of the School Education produced the policy of the State Government. The English translation thereof has been filed before this Court. Secretary of the School Education fairly submitted the new policy of the State Government required further modification. It is apposite to state here that this Court observed in the final judgment of the said case the Government was not satisfied with regard to manner in which the permission to open the school was being granted. At this juncture we think it apposite to reproduce the report which was filed before this Court by the Commission appointed by it. The relevant portion of the said report reads as under:--
"After receipt of the order, necessary intimations were given to the counsel's representing the State Government and the Board of Secondary Education, Madhya Pradesh, Bhopal with regard to the proposed visit of the Commission, counsel for the State Government and the Board were informed on 5th October, 2001 that the Commission would be inspecting the school on 12-10-2001 at 11:00 AM. accordingly they were requested to keep their representative present at the time of inspection.
The Commission reached Rewa in the night of 11th October, 2001. On 12-10-2001, the District Education Officer, Rewa met the Members of the Commission in the morning around 8.00 A.M. and informed that the school in question is situated in a remote place about 89 kilometers away from Rewa towards the U.P. Boarder and is in fact nearer to Allahabad. It was indicated that it would take about 21/2 hours drive from Rewa to reach the school. He informed that the School is in a remote rural area. Accordingly the Commission left Rewa at 9.00 AM. and reached the school in question around 11.30 AM. The District Education Officer and his representative accompanied the Commission.
Even though information was given to the counsel for the Board of Secondary Education with regard to the visit of the Commission, the representative of the Board neither appeared at Rewa nor was any one present on behalf of the Board of Secondary Education at the time of inspection in the school.
' This Hon'ble Court in the order dated 26-9-2001 had specified in para 8 of the order the following points to be looked into by the Commission:
(i) Strength of the students, who are prosecuting their studies in the classes Ist to VIIIth;
(ii) Strength of the students who have taken admission for the pursuing their academic sessions in Classes IX to XIIth;
(iii) the number of class-rooms which the school premise has, and how many sections are in existence in all the classes;
(iv) the strength of the teachers and their qualifications; and
(v) the Admission Registers, indicating the time of admission and the strength indicated therein.
Apart from the aforesaid 5 specified points, in Paragraph 7 of the order, this Hon'ble Court has indicated that the facts which have come to its notice, the Hon'ble Court cannot ignore the same and it can not act as a silent spectator. It was indicated that the Board of Secondary Education has alleged fraud by the heads of the educational institution and the people who run the school. This Hon'ble Court had further indicated that the education and education alone is the backbone of the progress of a country. The same is vital to civilisation and this Court cannot turn a Nelson's eye to the obtaining factual matrix. The observations made by this Hon'ble Court in para 7 of the order therefore, cast's duty on this Commission to bring to the notice of the Hon'ble Court the factual aspect of the matter, which the Commission observed during its visit to the School. The question as to whether necessary infra-structural facilities are available for maintaining and running the school for purpose of imparting education seems to have been an important consideration before this Hon'ble Court. The Members of the Commission therefore, cannot ignore the feeling observed by this Hon'ble Court and highlight the shocking factual scenario which came to its knowledge during the inspection of the school.
It is in this background that before giving specific observations with regard to the points enumerated in Paragraph 8 of the order, it is thought appropriate to put on record the factual aspect of The matter which were observed by the Commission during its visit to the school. In this report therefore, the first part deals with the actual position that emerged on visit to the school and thereafter the points indicated by this Hon'ble Court in para 8 of the order are being answered to.
On reaching the school, the President of the Society, which runs the school, namely one Sri Sangtha Prasad Diwedi and the Principal of the School Sri Balmukund Mishra were present.
The school is situated in the village Barefhikala, Block-Jawa, Distt. Rewa. It was about 89 kilometers away from Rewa Town towards Allahabad. And in fact U.P. Border was about 11 kilometers away from Barethikala village and Allahabad was 50 kilometers away. The school consisted of a single storied structure/building. In all there were two small rooms measuring about 10 feet and 8 feet in dimension at both the ends and in between there were 5 rooms two of the rooms were of approximately 20 feet and 14 feet in size and other two were 15 feet into 12 feet in size. The room in the left side was the School Library as per indication pasted on a piece of paper at the entrance of this room. Similarly room on the right side was the science laboratory. There was no electricity connection in the school the structure was made on bricks without being plastered with cement. The floors were uneven and pasted with mud and cow-dungs which was done recently, may be a day or two before the date of inspection. The roof consisted of iron gurdles above which stone tiles were kept. The rooms were inadequately ventilated.
The 5 class rooms had Black Board and two or three Tatpatis spread on the floor for the purpose of seating of the students. The Black Board indicated that they have not been used for months together except for date 12-10-2001 or 11-10-2001 written on them, it was completed blank. Except in one room there was no chair or table for the teachers to sit.
The library of the school consisted of two broken chairs, one bench and three Iron Shelf in which only 36 books were kept. A perusal of the books indicated that they were the books prescribed in the syllabus for Classes IX to XII and were, the edition of the year 1997-98. The library did not have general book but only consisted of the aforesaid 36 books. Apart from this, the library was completely dark, hardly any light in it and window for ventilation.
The building was recently painted with some red colour and chunna. In front of each class room name of the classes were indicated by pasting a small piece of paper. The appearance of the building and the indication with regard to the classes being conducted in these rooms were done a day or two before, as they looked very fresh.
On removing the paper pasted in front of one of the class rooms the words KARAYALAYA (office) was written under it.
The room next to the library was class 'X' as per the label affixed at its entrance. On entering this room it was found that in all there were 9students sitting in this room and Mr. Jitendra Kumar Dwivedi standing with a book in his hand. He informed that he is the teacher in this class and he was leaching Maths to the students. Out of 9 students present in the class, 4 were girls and 5 were boys.
On being asked about his qualification, Shri Jitendra Kumar Dwivedi stated that he has passed B.Sc. The Black Board was clean and except for the date i.e., 12-10-2001, nothing was written on it. The members of the committee found that the books which students were carrying were either to Science or Hindi, but surprisingly none of the students had any Maths Text book with them. One of the student Ku. Rakhi Dixit was carrying a Science book and another Ku. Reeta Dwivedi, a Hindi book. None of the 9 students sitting in the class room had note books with them. None of the books which the students were carrying had their name nor was any marking made in these books with regard to the identity of the students or the class for which the book was prescribed. On enquiry Ku. Reeta Dwivedi informed that in the school there are two sections of Class 'X' namely Sections 'A' and 'B' and presently students of both the sections were attending the class. On enquiry it was found that out of the 9 students, 8 students belonged to Section 'B' and one student belonged to 'A' Section. When the member of the Commission enquired from the students about the time table and the period which are distributed for each subject the students were to answer the querry, except for saying that their classes start at 10.00 AM. in the morning. They were unable to say anything about the number of periods etc. One of the student had a time table kept in her book and it indicated that the school starts at 10:30 A.M. The students were not wearing any uniform but were dressed neatly for the day. When the students were asked as to how many teachers are there in the school, they were unable to say anything and in fact did not answer the questions. When the students were asked to give the names of their teachers, they were unable to tell the name of any teacher. When one of the boy present in the room was put a question as to what was being taught by Shri Jitendra Kumar Dwivedi, he did not give any answer, whereas another student informed that he was teaching Nibandh (essay). Further when he was asked as to in which note book he is writing the Essay he said that the teacher has taken his note book.
Ku. Reeta Dwivedi on enquiry informed that her father Shri Sangtha Pd. Dwivedi is President of the Society. This room had a door which was closed and opened into the library. The door had been locked and it appears to have been in this position since months. As already indicated, the floors were pasted with mud and cow-dung and brand new Talpatis were placed on the floor indicating that it had been purchased only recently.
The next class room adjacent to this room indicated that it was class XII (Science). On entering the room it was empty and there were neither any student or teacher in the room. In the label affixed at the entrance it was written class 12 (Arts). On removing this label underneath the word KARAYALAYA (office) was written.
The next room indicated that it was class XII (Science). The size of this room was approximately 20 feet x 12 feet in dimension. In all 7 students were sitting in this room, but there was no teacher. Some of the students gave their name as under:--
(1) Amit Kumar Dwivedi, he was son of the President of the Society namely Shri Sangtha Prasad Dwivedi.
(2) Reeta Devi.
(3) Bhupender Kumar Dwivedi, was son of the President's brother.
According to the students sitting there, they were being taught Hindi. However, none of the students had Hindi Text Book in their hand, except one student who had a Hindi unsolved guide in his possession. The other students were carrying different books. None of the students had time table. When asked, they could not give the name of their teacher, number of teachers teaching in the school and the number of students studying in the school. When Ku. Reeta Devi was asked, in which year she had passed Xth class, initially she said she does not know, then she said that she had passed class X in the year 2000. According to the students sitting in this class XII had 4 sections i.e., A, B, C and D, and three of the students sitting in this class said that they belonged to Section 'A'. Similarly three informed that they belong to Section 'C' and the remaining one informed that he is of "B" Section.
The next room indicated that it was Class XI but there were neither any student nor any teacher in the room.
The next room indicated that it was Class IX. There were 4 students in this room, three were girls and one boy. One Shri Shiv Shanker Dwivedi was present in this room and he informed that he is the teacher in the school. On querry one of the girls gave her name as Shridevi d/o Brijlal Dwivedi. She appeared to be about 9 or lOyears old only but on querry she said that she is 12 years old. The members of the Commission inquired from each students their name, and it turned down that one of the student namely Ku. Rinki Dwivedi was daughter of the elder brother of the President of the Society. One of the girl student in this room when asked as to in which year she had passed Class VIII she was unable to say anything. While the members of the Commission were making inquiries from the students and before anything could be put up to the teacher namely Shri Shiv Shanker Dwivedi he went away from the class. In the black board "11-10-2001" was mentioned and in this room there was a table with three drawers and a chair and one wooden and a steel almirah. On enquiry one of the boy said his father was working in the house of the President as "Harwaha". On opening one of the drawner, two polythene bags found kept and in one of them more than 200 passport size photograph of student bearing the signatures and seal of the Principal was kept. In the back side of these photographs name of Photo Studio situated in Rewa, Sidhi, Shahdol, Satna etc., were written. Apart from this some photocopies of mark-sheets issued by the M.P. Board of Secondary Education were kept in the almirah.
The next room was the Science Lab of the School which measured approximately 15 x 15 feet. There was a long table like structure covered with a cloth. One broken table measure 4 x 4 feet and wooden almirah was kept in the Laboratory. In the Almirah some empty Whisky & Beer bottles were kept. There were also some broken funnels and test-tubes and rusted big caliper appearance of which showed that it has not been used since long period. Some Old Practical note books were stacked in the shelf on top of the room this shelf was running on all the 3 sides of the room and on it were also kept about a dozen beakers and Test tubes, empty bottles contending labels of various Chemicals.
The students during the course of enquiry informed, that they are not paying any fee, whereas the President stated that the Society runs the school from the fee collected from the students. However, when asked to produce the receipt of fee and accounts of fee collected, he did not co-operate and maintained complete silence and did not produce any record with regard to the fee collected from the students. When the President was asked to produce the Bye-Laws, Constitution, Registration and other records with regard to working of the Society, he stated that the same were not available with him, except for intimating that he is President of the Society he did not show any genuine intention of producing the records and gave any information about the functioning of the Society, the names and particulars of the members of the Society etc. In fact the President of the Society was not at all co-operative and except for his physical presence, he did not render any assistance to the members of the Commission in unearthing the correct facts.
Thus at the time of visit to the school on 12-10-2001, only 20 students and 2 teachers were found in the school. Shri Jitendra Prasad Dwivedi stated that he is working in the school since August, 1999 as a Science teacher and had passed B.Sc. However, when one of the members of the Commission put to him some basic questions in Science he was unable to answer them, for e.g. he was unable to say what is Newton's Law, similarly he did not know who is Archimide.
When the members of the Commission were putting questions to, Shri Jitendra Kumar Dwivedi, the other teacher Shri Shiv Shanker Dwivedi, who was standing nearby again ran away from there.
On the left hand side where the school in question is situated, lot of teaching activities were going on. The Committee members, therefore, thought it proper to find out as to what is happening in this place which seemed to be in the same premises. This part consisted of about 3 rooms in which students were sitting and in the Varanda also classes were being held. About 5 classes were in progress, there were about 25 to 30 students in each classes and teachers were busy teaching the students. On enquiry it was revealed that this is the Saskiya Purwa Madhyamik Vidyalaya, Bertikala. The members of the Commission met the Head Master of this School who informed that this a Government School and there are 469 students and Classes I to VIII are held regularly in the school in two shifts. Siksha Karmis have been appointed by the Panchayat for teaching in the school.
After observing the aforesaid factual position in the nearby Government school premises, the Commission members thereafter went into the Principal's room to verify the records of the school. The Principal and the President of the Society were present in this room and on being asked to produce the attendance Register of Teachers and staff members, Attendance Registers of students, Admission Registers of students, wage-sheet of teachers, fee receipt book and other records like ledger and cash book of the school. The following Registers were produced by the Principal:--
(1) Attendance Register of teachers and staff for the period June, 2001 to October, 2001.
(2) Attendance Registers of students total 7 in number from June, 2001 to October, 2001 i.e., in all 8 Registers were produced for inspection.
The Principal only produced these eight Registers, he was requested to produce Admission Register, Wage Registers of the teachers and other records, the Principal informed that these are the only registers available and except these he has no registers.
The Principal and the President of the Society who were present in the school were unable to answer the questions put to them. When the Principal was asked as to how many students are there in the school, he was unable to give any answer and the President of the Society merely indicated that because of the attitude of the Board, all the students have left and the Society is suffering because of Board's action. However, he did not indicate the exact number of students studying in the school or the number of the teachers and the other staff members employed by the Society. Even the Principal of the School was unable to answer the queries with regard to number of teachers teaching in the school and the other staff members. On being asked as to why only 20 students and two teachers are present today, both the Principal and the President of the Society, Shri Sangtha Prasad Dwivedi indicated that because of political rivalry nobody has come today as they were prevented because every one knows that commission is visiting the school today and they want to see that the school is closed.
It was informed by the Principal and the President of the Society that the school does not have classes I to VIII but it only has Classes IX to XIIth.
In the attendance register names of 10 teachers were indicated. On being asked it was stated that this is attendance register of teachers. Attendance of the teachers were marked on each day from June, 2001 onwards and the register indicated that out of 19 persons whose name were mentioned in the register, on an average 13 or 15 persons were present on each working day. On the day of inspection i.e., 12-10-2001 only two teachers were marked as present and the remaining persons were marked absent. However, on the previous days, i. e., 11-10-2001, 10-10-2001, 9-10-2001 etc. about 15 or 16 persons were marked as present. On being asked as to whether all the 19 persons are teachers in the school it was informed that these include teachers and other staff members. However, the designation were not mentioned against the name and on being asked as to what is the strength of teachers and staff members, neither the Principal nor the President of the Society gave any statement except maintaining total silence. However, on making physical verification it was found that apart from the two teachers one Shri Dayashanker Dwivedi whose name was mentioned in the attendance register was present and stated that he is an Accountant-cum-Clerk and looks after maintenance of Accounts etc. in the school. When he was asked to produce the records of accounts of the school like fee collection, register, receipt issued to students, wages register and the cash book or ledger etc., he informed that since June, 2001 none of the staff members are paid any wages and therefore, there was no wage register and the students are also not paying any fee. However, when asked whether registers are there, he did not say anything. When the same querry was put to the President of the Society, he informed that he has not approached the High Court for any relief and therefore, he does not understand as to why the High Court has sent this Commission to his school. Apart from producing the attendance registers of Staff members and 7 attendance registers of students, repeated requests made by the members of the Commission to the Principal and the President of the Society to produce further records met with totally indifferent attitude and silence from these persons. Both of them did not show any genuine intention to provide the records. Neither did they say anything about the availability of such records nor were they able to say as to why they are unable to produce the same. When the Principal was asked about the records of the previous academic session he informed that he has joined the school only in June, 2001 and does not know anything about the period prior to that. Attendance Register of the previous academic session was not made available to the Commission. When asked to produce the admission register of the school for the current academic session i.e., 2001-02 and the previous academic session Le., 2000-2001 both the President of the Society and the Principal expressed their ignorance about the existence of any such register. Apart from producing the aforesaid 8 registers, not a single record was made available to the Commission. Every time a total silence was maintained by the Principal and the President of the Society. After some persuation the President stated that Key of the Almirah where the records are kept have been taken away by one Shri Devendra Kumar Mishra who is on leave since more than two months and he has gone for Ganga Darshan. The name of this person appeared in the Attendance Register indicated that he was present till 30th September, 2001 and was absent from 1st October, 2001 onwards, when asked as to which are the records kept in his custody, the President of the Society did not say anything and only said that he does not know anything. It was surprising that apart from the 8 attendance registers which consisted of one attendance register of Teachers/Staff members and 7 attendance register of students, no record was available in the school premises and all endeavour made by the members of the commission to see the records or to get an explanation with regard to the whereabouts of these records fell on the deaf ears and a total silence was maintained in this regard both the Principal of the school and the President of the Society. However, the President apart from intimating that the records are in the custody of Shri Devendra Kumar Mishra who was gone for Ganga Darshan was unable to say anything more on the issue. The Commission was therefore, unable to inspect any record except these 8 registers. These registers were also brand new in appearance and indicated that they have been prepared recently. The Registers were neat and clean, meticulously kept and it did not give any indication that they have been used since June, 2001. Normally attendance registers are sued every day of signature etc. to mark the attendance/signature and therefore, the papers look soiled or shows signs of ware and tare but in this case the Registers appeared to be new ones and seems they were not used regularly since June, 2001. The Commission is of the opinion that these registers were prepared recently. It also appeared that all the registers were filled by one person as the hand writing was appearing to be of one person.
The factual positions that were observed in the attendance registers of classes were as under:--
(1) Register No. 1: This register was the attendance register of Class X-A. The total number of students shown to be studying in Class X-A were 30. On 12-10-2001 only one student was shown to be present, whereas on 11-10-2001, 13 students were present. On the days prior to 11-10-2001 most of the students were shown to be present on each day.
(2) Register No. 2 : This register was the attendance register for Class IX and it had names of 37 students registered in it. However, on the date of inspection only 4 students were shown as present.
(3) Register No. 3 : Indicated that it is of Class X-A and had 40 students registered in it and on the day of inspection i.e., 12-10-2001, only one student was shown to be present. However, on the previous dates substantial number of students were shown to be present.
(4) Register No. 4: This register was the attendance register of Class 12-B and had name of 62 students registered in it. However, on 11-10-2001 more than 50 students were shown to be present but for 12-10-2001 there was no entry with regard to the presence or absence of the students in this register.
(5) Register No. 5: This was the attendance register of Class 12-D and it had names of 34 students registered in it.
(6) Register No. 6: This was the attendance register of Class 12-A which had 61 students registered in it and on the date of inspection i.e., 12-10-2001 only 3 students were shown to be present.
(7) Register No. 7: This was attendance register of Class XII-C and had 62 students registered in it. On 12-10-2001 only 3 students were shown to be present.
Accordingly to the attendance register in all 326 students were shown to be registered in these registers but the attendance of only 12 students were marked on the dale of inspection i.e., 12-10-2001 even though 20 students were present.
The attendance register of Staff members indicated that there arc 19 members of the staff which included teachers and other staff members. The attendance register showed signature of most of the teachers on every day but on the day in question only 2 teachers and one staff member were shown as present.
In total the factual position that emerged on the date of inspection is that in the school 20 students were present and there was two teachers and one member of the staff, even though the attendance register of the school indicated that there are 326 students and 19 members of the staff in its roll.
After having indicated the factual scenario that emerged at the time of inspection, the points referred to in para 9of this Hon'ble Court's order arc now being answered by the Commission :--
Point No. 1. Strength of the students, who are prosecuting their studies 1st to VIIIth.
The school does not have class 1st to VIIIth. It is a Higher Secondary School having Classes IXth to XIIth only.
Point No. 2. Strength of the students who have taken admission for pursuing their academic sessions in Class IXth to XIIth.
The President of the Society and Principal of the School were unable to produce the admission register of the school, as such the strength of students who had taken admission for pursuing their studies in the current academic session in Class IXth to XIIth could not be ascertained. However, after seeing the attendance register produced at the time of inspection and on the basis of the entries made therein it is revealed that in all 326 students were shown to have been registered as students. But on physical verification on the date of inspection only 20 students were present. Particulars of which have already been indicated in the preceding paragraph and out of these 20 students present in the school, two students were the son and daughter of the President of the Society, another one was his brother's son and another student was President's servant's son.
Point No. 3. The number of class-rooms which the school premise has, and how many sections are in existence in all the classes :
The total number of class-rooms in the school were 5. Two of the class-rooms were of 20 x 14 feet in size and three were of 15 x 12 in size. Apart from the aforesaid there was a small Library room and a Science Lab. Even though the rooms do not indicate the number of section in each class accordingly to the attendance register of students provided there position was under:--
(1) Class 9 -- One Section.
(2) Class 10 -- Two Sections -- 10-A & 10-B. (3) No record of Class XI.
(4) Class XII -- 4 Sections -- XII-A, XII-B, XII-C and XII-D. Point No. 4. The strength of the teachers and their qualifications.
The strength of teachers in the school could not be ascertained, as the Principal and President of the Society did not produce any record or information with regard to the strength and qualifications of the teachers. But the attendance register of staff members indicated that there are 19 staff members in the school. However, at the time of inspection it was found that a list of staff members of the school was being prepared and it was kept in one of the table, this list consisted of 18 names. A copy of the list have been obtained by the Commission and is annexed with this report as Annexure-I. Even though this list does not bear any signature, it indicate that the school has one Principal, 7 Lecturers, 4 Upper Division Teachers, one P.T.I, one Audyogik Shiksha Sahayak, One Laboratory Assistant, one LDC and two peons. The qualification of the teachers could not be ascertained because the Principal and President of the Society neither produced any record nor did they render any assistance to Commission in ascertaining the same. Two of the teachers who were present in the school ie., Shiv Shankar Dwivedi and Jitendra Kumar Dwivedi indicated that they have passed B.A. and B.Sc. respectively. Shri Jitendra Kumar Dwivedi, did not produce any proof of this qualification, where as Shri Shiv Shankar Dwivedi produced a certificate indicating that he had passed B.A. in June '99 from M.P. (Bhoj) Open University, Bhopal, having obtained 321/690 marks. The Principal of the school and the President of the Society were specifically asked by the members of the Commission to produce the following documents:
(1) Appointment orders of teachers and other staff members.
(2) Service book of the teachers and other staff members.
and to give the names, other particulars, including the qualification of teachers, but both of them maintained total silence and pleaded ignorance of the same.
Point No. 5. The admission registers, indicating the time of admission and the strength indicated therein.
In spite of repeated requests made, no admission register was produced and therefore, the Commission could not find out the facts regarding strength of students admitted in the school as per the admission register.
After considering the facts that have emerged at the time of inspection and also considering the records which have been seen by the Commission at the time of inspection, the Commission has no other option but to come to the conclusion that the school in question exist only on paper. On paper this is a school consisting of about 326 students and 18 and 19 teachers and other staff members and is being run by a Society.
However, this Commission after due consideration of the aforesaid fads and circumstances can reach to only one conclusion and that the school is a farce and is a total commercial venture. The students who were presented before the Commission on the date of inspection are in fact impresonators and cannot be terms as genuine students studying in the school so is the case with the teachers. This Commission strongly believes that the Principal and teachers who were presented before the Commission on the date of inspection were prepared for the same and were not genuine teachers of the school. In fact the school does not have any Principal, teacher or students and the school exist only on paper. Even the existence of the Society for running the school becomes doubtful because no records were produced with regard to registration of the society, its bye-laws, members managing the Society, their particulars etc. The President was unable to give any explanation with regard to the Constitution of the Society which run the school, the persons concerned who managed the affair nor was any record produced with regard to the activities of the Society."
71. The aforesaid factual scenario depicts a dismal and disheartening picture. True it is, Mr. V.K. Tankha has endeavoured hard to portray the picture that many an organisation is coming forward to open new schools but the schools which are non-aided and private are of the nature which we have referred to above, and if we allow ourselves to say so, when these aspects have come to notice of this Court, this Court can not totally brush aside the same. If there has been mushroom growth of schools and colleges it is because of the policy of the State Government as it granted permission without any data or foundation. No school or institution can run without permission of the State Government. The submission to the effect that if those school can survive why not the presently aided institutions, is totally unacceptable and in fact, such an action would introduce an unhealthy situation which will cripple the educational system.
72. At this juncture, we may also take note of the aspect that in W.P. No. 2104/2001 the Secretary of the School Education has stated that a committee has been constituted to revise the policy for grant of permission to open schools. In the said committee report the Government has thought of restricting the grant of permission. It is admitted that initially on the basis of the affidavit filed permission was granted to open the schools and there was no verification from any quarter. Such was the scenario in regard to educational institutions in the State and, therefore, the vehement submission of Mr. Tankha that educational institutions are running without grant of aid is totally devoid of any substance. In fact, if we may allow ourselves to say so, said educational institutions are an apology for educational institutions. The so called non-aided private educational institutions create an illusion and fata Morgana. No affidavit has been filed with regard to infrastructure of the school, number of regular students, number of teachers and qualifications of the teaching staff. We may also indicate here that in number of cases as the authority in management or Principal had committed fraud by allowing students who had no eligibility to appear in the examination, this Court had directed for investigation by the Criminal Investigation Department and on investigation the concerned agency found that there was fraud and accordingly launching of prosecution was directed. This is the scenario in the sphere of private non-aided educational institutions. On the contrary, we may hasten to add, no allegation has been made with regard to qualification or infrastructure or other facilities in respect of educational institutions which are receiving the grant-in-aid.
73. Elucidating further with regard to the unreasonableness of the amendment we proceed to state that the purported objective of the amendment is to meet the financial crunch faced by the State and to counter it, to adopt the method of divesting the amount spent on the private educational institutions for improving the qualify and standard of education in the Government institutions. The objective to be so achieved is itself fallacious as it is not based upon any reasonable classification between the Government and the private educational institutions. No foundation has been laid for the proposition that private educational institutions are inferior in standard to the Government educational institutions. Both types of institutions are affiliated to the same controlling bodies, i.e., the Universities. The recruitment to the private colleges are also controlled by the State legislation. Thus, the quality of education imparted is protected. That apart, students passing out of both types of institutions quality for the same avenues in all branches. It is also not the case that the Government educational institutions are a complete substitute for the private educational institutions and the latter are unnecessary appendage. Educating the eligible being the paramount duty of the State and the State being conscious of it, has allowed these private institutions to take up the State's role in the field of education for considerable length of time and has guaranteed their continuance through the financial aid. To introduce a legislation to scuttle and asphyxiate the activities of these institutions and to eventually usher in the resultant situation of extinction of these institutions is a retrograde step. The legislation is hit by Article 14 of the Constitution both having failed to base itself on a reasonable classification of abetting only the Government institutions and further imposing unreasonable conditions in the functioning of the so far aided institution. Under the new legislation the private institutions are required not only to deposit 1/12th of the total cost involved in the payment of salaries, but also to deposit the entire fee collected from the students in the 'institutional fund'. The managements are thus left with no funds for the maintenance of the institutions which would include funds required for maintenance of the building, replacement of furnitures, purchase of stationeries, holding of examinations and other varieties of expenses. Obviously, these expenses cannot be met by the management from out of their own pocket and it is enjoined that every single pie collected from the students has to be deposited in the 'institutional fund'. Again, the resultant situation would be that the management should endeavour to collect amount from the students as being other than fees, leading to the unhealthy, unwholesome and unwelcome situations of introduction of donations, capitation fees, et cetera. The students in these private institutions would be made to suffer from these harassment as a consequence of the amended legislation.
74. The legislation proceeds on the footing of Government institutions being more necessary or more precious than the private educational institutions, which is a myth, as it has been often the case that many of these private institutions achieve better results. Again, the private institutions have not only been recognised by the State, but also have been admitted to full grant-in-aid which in itself is a recognition that the establishment, continuance and maintenance of these institutions is a State necessity and responsibility. Hence, legislation is undoubtedly discriminatory purported to be based upon unreasonableness and untenable classifications.
75. Again, the avowed justification given out for the legislation to survive the financial crunch which has been effectively disproved in the rejoinder filed giving in detail the actual figures of amounts spent on the private institutions and the percentage of such expenditure. As such, the very basis of the legislation, the objective sought to be achieved by the legislation is absent and in a way is self-defeating because, taking the resultant situation into account, the very given out object of maintaining these institutions is defeated as the institutions themselves will die out.
76. We may scrutinise the situation from another spectrum. Right to education has been held in the case of Trust and Ors. v. Subharti K.K.B. Charitable Trust and Anr., (2001) 5 SCC 486, as a fundamental right within the ambit of Part-Ill of the Constitution. The Apex Court observed that unless there arc proper educational facilities in the society, it would be difficult to meet with the requirements of the younger generation who have a keen desire to acquire knowledge and education to compete in the global market. It is required to be accepted that for establishing educational institutions, Government machinery or funds are neither sufficient nor adequate and the necessity of private institutions, can not be denied. The necessity of private educational institutions is thus acknowledged and though it is said that the State's funds are not sufficient, nor adequate, yet, where attempt is made to take away the small Fragment of the total expenditure on the subject, or is also purported to be taken away, the legislation is bound to be termed as being arbitrary and discriminatory.
77. At this juncture, we may proceed to state that from the 1960 onwards there has been a progressive step in the field of education but all of a sudden regressive steps have been taken. In this context the learned counsel for the petitioners have drawn the attention of this Court to the decision rendered in the case of State of Gujarat and Anr. v. Roman Lal Keshav Lal, AIR 1984 SC 161. In the aforesaid case the Constitution Bench was dealing with the validity of the Gujarat Panchayat (Third Amendment) (Act 28 of 1978) in the backdrop of the service conditions of the employees of Gujarat Panchayat. Their Lordships in Paragraph 52 held as under:--
"52. The legislation is pure and simple, self-deceptive, if we may use such an expression with reference to a legislature-made law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution and have to conform to the dos and don'ts of the Constitution, neither prospective nor retrospective laws can be made to so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today's rights and not yesterday's. A legislature can not legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history. It was pointed out by a Constitution Bench of this Court in B.S. Yadav v. Slate of Haryana, (1981) 1 SCR 1024 : (AIR 1981 SC 561), Chandrachud, C.J., speaking for the Court, "since the Governor exercise the legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation, to the rules made under that provision. But that dale from which the rules are made to operate must be shown to bear either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case". Today's equals can not be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective Constitutional rights, Constitutional obligations and Constitutional consequences cannot be tampered with that way. A law which is made today would be plainly invalid as offending Constitutional provisions in the context of the existing situation can not become valid by being made retrospective. Past virtue (Constitutional) cannot be made to wipe out present vice (Constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayats (Third Amendment) Act, 1978 is unconstitutional, as it offends Articles 311 and 14 and is arbitrary and unreasonable...."
78. We are conscious that the aforesaid decision was rendered in a different context but we have referred to the same as in the case at hand a retrogressive step has been taken. The State Government has taken the plea of development to bring the amendment but as an actual fact it is not a step towards progression but a step towards regression. An attempt has been made to put the clock back which corrodes the educational system which is essential for vibrating the nation. The reasons that have been ascribed are not cogent and germane and they do not, if we may say so, release the provisions from conscientious embrace of Article 14 of the Constitution.
79. Mr. Tankha has given immense emphasis on the concept of education in the rural area highlighting that in the State of Madhya Pradesh the rural population do not get education. The learned counsel has made enormous efforts to make a distinction between the semi urban and rural area. At this juncture we may profitably refer to the decision rendered in the case of Narayan Sharma v. Pankaj Kumar, AIR 2000 SC 72, wherein their Lordships while dealing with the admission to Post Graduate provisional course and reservation of seats opined that a rural area is not a class by itself and can not be considered to be socially and educational backward merely because it is a rural area. We have only referred to the aforesaid aspect to show that rural area can not be regarded as a class by itself. The learned counsel for the State has not produced anything on record to show how semi urban could not be affected if these schools and colleges are forced or compelled to close down. Diversion of funds to the rural area can not be regarded as a progressive step. Hence, on this ground we also express the view that the stand taken by the State Government to defend the peace of legislation is not defensible.
80. At this stage we may proceed to state that it has been admitted by the learned Advocate General that the institutions run by religious minority would be provided grant-in-aid in full and similarly the schools which are admitting students more than a particular percentage of Scheduled Castes and Scheduled Tribes persons would also be entitled to grant-in-aid. Mr. Tankha commended us to the decision rendered in the case of St. Stephen's College etc. v. The University of Delhi etc., AIR 1992 SC 1630, where in their Lordships have held as under:--
"87. It is quite true that there is no entitlement to State grant for minority educational institutions. There was only a stop-gap arrangement under Article 337 for the Anglo-Indian community to receive State grants. There is no similar provision for other minorities to get grant from the Stale. But under Article 30(2), the State is under an obligation to maintain equality of treatment in granting aid to educational institutions. Minority institutions are not to be treated differently while giving financial assistance. They are entitled to get the financial assistance much the same way as the institutions of the majority communities.
88. Second; the receipt of State aid does not impair the rights in Article 30(1). The State can lay down reasonable conditions for obtaining grant-in-aid and for its proper utilisation. The State has no power to compel minority institutions to give up their rights under Article 30(1). (See : Re : Kerala Education Bill case and Sidhaajbhai case). In the Bill case this Court observed (at 856-857) that the regulation which may lawfully be imposed as a condition of receiving grant must be directed in making the institution an effective minority educational institution. The regulation cannot change the character of the minority institution. Such regulations must satisfy a dual test; the test of reasonableness, and the test that it is regulative of the educational character of the institution. It must be conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. It is thus evident that the rights under Article 30(1) remain unaffected even after securing financial assistance from the Government.
89. The educational institutions arc not business houses. They do not generate wealth. They cannot survive without public funds or private aid. It is said that there is also restrain on collection of students fees. With the restraint on collection of fees, the minorities cannot be saddled with the burden of maintaining educational institutions without grant-in- aid. They do not have economic advantage over others. It is not possible to have educational institutions without State aid. This was also the view expressed by Das, C.J., in Re : Kerala Education Bill case. The minorities cannot, therefore, be asked to maintain educational institutions on their own."
On a perusal of the said judgment it does not flow as the ratio that only minority institutions are to be given grant-in- aid. True it is, the amended Act does not lay down such provision but the defacto discrimination has been shown in the pleadings by the State Government. Similarly the Act also does not indicate certain school having students belonging to the Scheduled Castes and Scheduled Tribes beyond a particular percentage would be given grant-in-aid but the same is being done by the State Government. Thus we notice a discrimination is writ large. However, we are not adverting to this facet in detail as we have already taken note of other aspects to show how by amendment a stage has been brought which infringes the conscience of the Article 14 of the Constitution.
In view of our preceding analysis, we come to hold that the amendments which have been brought on the statute book are unreasonable, irrational and arbitrary and affect the conscience of the Article 14 of the Constitution.
81. Now we shall proceed to deal with whether the amendment violates Article 21 of the Constitution. As has been indicated hereinabove we have already negatived the contentions of Mr. Tankha with regard to locus standi of the petitioners to assail the amendment on the said count. In the case of Unni Krishnan (supra), Mohan, J., after referring to the cases of A.D.M. v. Shivakant Shukla, (1976) 2 SCC 521 and Maneka Gandhi v. Union of India, AIR 1978 SC 597 and various other decisions which deal with Article 21 and after referring to Article 26(1) of the universal declaration of human rights came to hold that the State is bound to provide education to a particular level. Thereafter,' in Paragraph 87 his Lordship has stated so:
"87. However, a word of caution requires to be uttered. Not all the private institutions belong to this category. There are institutions which have attained great reputation by devotion and by nurturing high educational standards. They surpass the colleges run by the Government in many respects. They require encouragement. From this point of view regulatory controls have to be continued and strengthened. The commercialization of education, the racketeering must be prevented. The State should strive its utmost in this direction."
82. Jeevan Reddy, J., in Paragraph 166 referred to the case of Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, and after referring to the case of Brown v. Board of Education, 98 L Ed 873 US 483 (1954) in Paragraphs 170, 171, 172 and 175 held as under :--
"170. It is argued by some of the counsel for the petitioners that Article 21 is negative in character and that it merely declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Since the State is not depriving the respondents-student of their right to education, Article 21 is not attracted, it is submitted. If and when the State makes a law taking away the right to education, would Article 21 be attracted, according to them. This argument, in our opinion, is really born of confusion; at any rate, it is designed to confuse the issue. The first question is whether the right to life guaranteed by Article 21 does take in the right to education or not. It is then that the second question arises whether the State is taking away that right. The mere fact that the State is not taking away the right as at present does not mean that right to education is not included with right to life. The content of the right is not determined by perception of threat. The content of right to life is not to be determined on the basis of existence or absence of threat of deprivation. The effect of holding that right to education is implicit in the right to life is that the State can not deprive the citizen of his right to education except in accordance with the procedure prescribed by law.
171. In the above state of law, it would not be correct to contend that Mohini Jain was wrong insofar as it declared that 'the right to education flows directly from right to life'. But the question is what is the content of this right ? How much and what level of education is necessary to make the life meaningful ? Does it mean that every citizen of this country can call upon the State to provide him education of his choice ? In other words, whether the citizens of this country can demand that the State provide adequate number of medical colleges, engineering colleges and other educational institutions to satisfy all their educational needs ? Mohini Jain seems to say, yes. With respect, we can not agree with such a broad proposition. The right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the directive principles in part IV of the Constitution. So far as the right to education is concerned, there are several article in part IV which expressly speak of it. Article 41 says that the 'State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved wan'. Article 45 says that 'the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years'. Article 46 commands that 'the State shall promote with special care the educational and economic interest of the weaker sections of people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation'. Education means knowledge - and 'knowledge itself is power'. As rightly observed by John Adams, "the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country" (Dissertation of Canon and Feudal Law, 1765). It is this concern which seems to underlie Article 46. It is the tyrants and bad rulers who are afraid of spread of education and knowledge among the deprived classes. Witness Hitler railing against universal education. He said "universal education is the most corroding and disintegrating poison that liberalism has ever invented for its own destruction". (Rauschning, The Voice of Destruction : Hitler Speaks.) A true democracy is one where education is universal where people understand what is good for them and nation and know how to govern themselves. The three Articles 45, 46 and 41 are designed to achieve the said goal among others. It is in the light of these Articles that the content and parameters of the right to education have to be determined. Right to education, understood in the context of Articles 45 and 41, means : (a) every child/citizen of this country has a right to free education until he completes the age of fourteen years and (b) after a child-citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development. We may deal with both these limbs separately.
172. Right to free education for all children until they complete the age of fourteen years (Art. 45). It is noteworthy that amount the several articles in Part IV. Only Article 45 speaks of a time-limit; no other article does. Has it no significance ? Is it a mere pious wish, even after 44 years of the Constitution. Can the State flout the laid direction even after 44 years on the ground that the article merely calls upon it to 'endeavour to provide' the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37. Does not the passage of 44 years more than four times the period stipulated in Article 45 convert the obligation created by the article into an enforceable right ? In this context, we feel constrained to say that allocation of available funds to different sectors of education in India discloses an inversion of priorities indicated by the Constitution. The Constitution contemplated a crash programme being undertaken by the State to achieve the goal set out in Article 45. It is relevant to notice that Article 45 does not speak of the 'limits of its economic capacity and development' as does Article 41, which inter alia speaks of right to education. What has actually happened is - more money is spent and more attention is directed to higher education than to - and at the cost of - primary education. (By primary education, we mean the education, which a normal child receives by the time he completes 14 years of age.) Neglected more so are the rural sectors, and the weaker sections of the society referred to in Article 46. We clarify, we are not seeking to lay down the priorities for the Government -
we are only emphasising the Constitutional policy as disclosed by Articles 45, 46 and 41. Surely the wisdom of these Constitutional provisions is beyond question. This inversion of priorities has been commented upon adversely by both the educationists and economists.
*****
175. Be that as it may, we must say that at least now the State should honour the command of Article 45. It must be made a reality - at least now. Indeed, the National Education Policy, 1986 says that the promise of Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child (citizen) has a fundamental right to free education up to age of 14 years."
His Lordship in Paragraph 181 further expressed thus:--
"181. Right to education after the child/citizen completes the age of 14 years. The right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development. By saving so, we are not transferring Article 41 from Part IV to Part III - we are merely relying upon Article 41 to illustrate the content of the right to education flowing from Article 21. We cannot believe that any State would say that it need not provide education to its people even within the limits of its economic capacity and development. It goes without saying that the limits of economic capacity are, ordinarily speaking, matters within the subjective satisfaction of the State."
83. We have quoted in extenso from the aforesaid decision because the Apex Court recognised that education upto 14 years of age is a fundamental right and thereafter it depends on the economic conditions of the State. We are conscious that the Apex Court observed that the economic conditions has to be within the subjective satisfaction of the State. In the case at hand the State undertook the responsibility of providing education in the Higher Secondary School as well as at the college level. There had been constant progress for last four decades and at no stage the State felt the economic problem. Presently they have come with the amendment indicating that they have to spread the education in the rural area and to make some progress in the Governmental educational institutions. By doing this the State Government is cutting one limb and trying to nourish the other.
84. At this stage we may refer with profit to the decision rendered in the case of University of Delhi and Anr. v. Anand Vardhan Chandal, (2000) 10 SCC 648, wherein the Constitution Bench held as under:--
"(1) A Division Bench of the Delhi High Court posed the following question for its considerations:--
"Is there fundamental right to education to be spelt out of clauses (a), (b) and (c) of Article 19(1) and Article 21 of the Constitution ? Does it include participation by a student in the activities of the University Student's Union ? Does the denial of this right to the petitioner by the University sustain this petition under Article 226(1)(a) of the Constitution ? These somewhat novel questions arise in this writ petition on the following facts."
(2) The High Court answered the first part of the question in the affirmative and has held that the right to education is a fundamental right. This question has been finally decided by a Constitution Bench of this Court in Unnikrishnan, J.P. v. State of A.P.. There is, therefore, no dispute that the right to education is a fundamental right to the extent it has been spelt out by the Constitution Bench in Unnikrishnan case."
85. In this context we may profitably refer to the decision rendered in the case of State of H.P. v. H.P. State Recognised and Aided Schools Managing Committees and Ors., (1995) 4 SCC 507, wherein a three Judge Bench of the Apex Court after referring to the decision rendered in the case of Unnikrishnan (supra) held as under:--
".......... This Court has authoritatively held that the State is under an obligation to provide free education to the children up to the age of fourteen. We take judicial notice of the fact that, ordinarily, a child in this country joins school at the age of five years. All the children studying in the Middle Schools would be less than fourteen. Therefore, the State Government is under an obligation to provide free education to the children studying in the 54 Non-Government Middle Schools. In other words, the 54 Middle Schools are entitled to full grants-in-aid from the State Government. So far as the High and Senior Secondary Schools numbering 90 (82 + 8) are concerned the State Government is again under an obligation to provide free education to the children studying in these schools who are fourteen years of age or less. The net result is that even in High and Senior Secondary Schools, up to 8th/9th Class - the students being 14 or below - the State Government is bound to provide free education and such bound to meet the total expenditure of the schools to that extent. The large majority of students, in the 144 Non-Government schools, being fourteen years of age or below the contention of the learned counsel for the State based on financial constraints, is wholly untenable.
16. The Constitutional mandate to the State, as upheld by this Court in Unnikrishnan case to provide free education to the children up to the age of fourteen - can not be permitted to be circumvented on the ground of lack of economic capacity or financial incapacity.
17. It is high time that the State must accept its responsibility to extend free education to the children up to the age of fourteen. Right to education is equally guaranteed to the children who are above the age of fourteen, but they cannot enforce the same unless the economic capacity and development of the State permits the enforcement of the same. The State must endeavour to review and increase the budget allocation under the head 'Education'. The Union of India must also consider to increase the percentage of allocation of funds for "Education " out of the Gross National Product"
86. In the case of K. Krishnamacharyulu and Ors. v. Venkateswara Hindu College of Engineering and Anr., (1997) 3 SCC 571, the Apex Court recognised education as a fundamental right and held that it was the State has the obligation to provide facilities and opportunities to the people to avail of the right to education.
87. We may at this juncture state that it has already been held by the Supreme Court that International Conventions and Declarations to which India is a signatory and party are enforceable in Courts of law if they do not run counter to any legislation.
88. Thus, the right to education is a fundamental right but it is not an absolute one at all levels. But the obtaining factual matrix depicts a different scenario. It is not a case where students are claiming higher education as a matter of right. The same had already been provided to the students of certain areas which may be urban and semi-urban areas. Students had access to these kind of facilities. It can not be forgotten that education helps building a nation livens the life spark of lives and makes the life purposeful and meaningful. In this factual backdrop if schools and colleges are allowed to be closed in a vicarious method, it would tantamount to denial of the accessibility to students of certain areas to have higher education. This, in our view, corrodes the quintessence of Article 21 of the Constitution.
89. Presently, we shall proceed to the other aspect which has been urged before us relating to abridgement of right enshrined under Article 21 of the Constitution qua teachers. In this context we may profitably refer to the decision rendered in the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., AIR 1991 SC 101, wherein it has been held as under:--
"259. It is well settled Constitutional law that different Articles in the chapter on Fundamental Rights and the Directive Principles in Part IV of the Constitution must be read as an integral and incorporeal whole with possible overlapping with the subject-matter of what is to be protected by its various provisions particularly the Fundamental Rights.
.......... The nature and content of the protection of the fundamental rights is measured not by the operation of the State action upon the rights of the individual but by its objects. The validity of the State action must be adjudged in the light of its operation upon the rights of the individuals or groups of individual in all their dimensions. It is not the object of the authority making the law impairing the right of the citizen nor the form of action taken that determines the protection he can claim; it is the effect of the law and of the action upon the right which attracted the jurisdiction of the Court to grant relief. In Minerva Mills Ltd. v. Union of India, the fundamental rights and directive principles are held lo be the conscience of the Constitution and disregard of either would upset the equibalance built up therein. In Maneka Gandhi case it was held that different articles in the chapter of fundamental rights of the Constitution must be read as an internal whole, with possible overlapping of the subject-matter of what is sought to be protected by its various provisions particularly by articles relating to fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial justice; social, economic and political, and of equality of status and opportunity which imply absence of unreasonable or unfair discrimination between individuals of groups or classes. The fundamental rights protected by Part 111 of the Constitution, out of which Articles 14, 19 and 21 are the most frequently invoked to test the validity of executive as well as legislative actions when these actions are subjected to judicial scrutiny. Fundamental rights arc necessary means to develop one's own personality and to carve out one's own life in the manner one likes best, subject to reasonable restrictions imposed in the paramount interest of the society and to a just, fair and reasonable procedure. The effect of restriction or deprivation and not of the form adopted to deprive the right is the conclusive test. It is already seen that the right to a public employment is a Constitutional right under Article 16(1). All matters relating to employment include the right to continue in service till the employee reaches superannuation or his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution or the rules made under proviso to Article 309 of the Constitution or the statutory provision or the rules, regulations on instructions having statutory flavour made thereunder. But the relevant provisions must be conformable to the rights guaranteed in Parts III and IV of the Constitution. Article 21 guarantees the right to live which includes right to livelihood, to a many the assured tenure of service is the source, the deprivation thereof must be in accordance with the procedure prescribed by law conformable to the mandates of Articles 14 and 21 as be fair, just and reasonable but not fanciful, oppressive or at vagary."
90. In the decision rendered in the case of Samatha v. State of A.P. and Ors. (1997) 8 SCC 191, emphasis was given on right to health and education.
91. In the case of 5.5. Boat and Ors. v. V.B.D. Sardana and Ors., (1997) 8 SCC 522, the Court recognised the right to development as a fundamental right. Taking into account the Declaration of "Right to Development Convention" adopted by the United Nations and ratified by India of which Article 3(1) recognised and enjoined that it is the State's primary responsibility to create conditions favourable to the realisation of the right to development. Article 8 thereof enjoins that the State should undertake, at the national level, all necessary measures for the realisation of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic education, health services, food, el cetera. In Paragraph 77, the Court observed that a poor man is equally entitled to make his right to life guaranteed under Article 21 meaningful by securing adequate means of livelihood, right to health, education, of residence or shelter etc., which are essential and unavoidable components of life for enjoyment of fundamental freedoms.
92. In the case of K. Krishnamacharyulu and Ors. v. Shri Venkateswara Hindu College of Engineering and Anr., AIR 1998 SC 295, it has been held as under:--
"4. It is not in dispute that executive instructions issued by the Government have given them right to claim the pay scales so as to be on a par with the Government employees. The question is when there are no statutory rules issued in that behalf, and the institution, at the relevant time, being not in receipt of any grants-in-aid; whether the writ petition under Article 226 of the Constitution is not maintainable ? in view of the long line of decisions of this Court holding that when there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education gel an clement of public interest in the performance of their duties. As a consequence, the element of public interest requires to regulate of the conditions of service of those employees on a par with Government employees. In consequence, are they also not entitled to parity of the pay scales as per the executive instructions of the Government ? It is not also in dispute that all the persons who filed the writ petition along with the appellant had later withdrawn from the writ petition and thereafter the respondent-Management paid the salaries on a par with the Government employees. Since the appellants are insisting upon enforcement of their right through the judicial pressure, they need and seek the protection of law. We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the need of providing educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution, is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. It would be a different position, if the remedy is a private law remedy. So, they can not be denied the same benefit which is available to others. Accordingly, we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on a par with Government employees under Article 39(d) of the Constitution."
93. In this regard we may also refer to the decision rendered in the case of Air India Statutory Corporation v. United Labour Union and Ors., AIR 1997 SC 645, wherein it has been held as under:--
"All essential facilities and opportunities to the poor people are fundamental means to development, to live with minimum comforts, food, shelter, clothing and health. Due to economic constrains, though right to work was not declared as a fundamental right, right to work of workmen, lower class, middle class and poor people is means to development and source to earn livelihood. Though, right to employment cannot, as a right, be claimed but after the appointment to a post or an office, be it under the State, its agency instrumentality, jurisdic person or private enterpreneur it is required to be dealt with as per public element and to act in public interest assuring equality, which is a genus of Article 14 and all other concomitant rights emanating therefrom are species to make their right to life and dignity of person real and meaningful. In a socialist democracy governed by the rule of law, private property right of the citizen for development and his right to employment and his entitlement for employment to the labour, would all harmoniously be blended to serve larger/social interest and public purpose."
94. We may, at this juncture, state that the learned counsel for the petitioners have also contended that the amendment brought on the statute book frustrate the social goal which has been sought to be achieved by the requirement of the Constitution. Immense emphasis has been given on Directive Principles occurring in Chapter IV of the Constitution and as well as Article 51A which deal with the fundamental duties. The learned counsel for the parties have placed heavy reliance on the decisions rendered in the cases of His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr., AIR 1973 SC 1461 and the State of Madhya Pradesh v. Pramod Bhartariya, (1993) 1 SCC 539, K. Rajendran and Ors. v. State of Tamil Nadu and Ors., AIR 1982 SC 1107, Haryana State of Adhyapak Sangh and Ors. v. State of Haryana, AIR 1990 SC 371.
95. In this regard we may profitably refer to the decision rendered in the case of P.M. Ashwathanarayan v. State of Karnataka, 1989 (Supp.) 1 SCC 696, wherein the Apex Court observed that Directive Principles of constitute fons juris in a welfare State.
96. We have referred to the aforesaid decisions to show that any legislation has to be reasonable and non-arbitrary that being the quintessence of Article 14 which is a part of the basic feature of the Constitution. In this context we may profitably quote a passage from decision rendered in the case of Maneka Gandhi (supra), wherein their Lordships held as under:--
"The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Art. 14 like a brooding omni presence and the procedure contemplated by Art. 21 must answer the test of reasonableness in order to be in conformity with Art. 14. It must be right and just and fair and not arbitrary, fanciful or oppressive, otherwise, it should be no procedure at all and the requirement of Art. 21 would not be satisfied."
We have referred to the aforesaid aspects only to highlight the role of a welfare State and its obligation to achieve certain social goats.
97. At this juncture, we may note that Mr. V.K. Tankha has submitted that no one can claim employment as a matter of right. He has placed reliance on the decision rendered in the case of Posts & Telegraphs Board V. C.S.N, Murthy, (1992) 2 SCC 317, wherein the Apex Court came to hold that no mandamus can be issued to compel an employer to post the employees no longer needed. There can be no dispute over the proposition that it is not the fundamental right to be employed. But as has been noted earlier once a person has been appointed the concept of security gets attached to it. We may hasten to add the security does not necessarily means that there can not be reduction in age of retirement. We are conscious certain instrumentalities of the State have extended various voluntary retirement schemes but the question arises in the instant case whether enactment which has totally changed the concept of salary of the teachers imparting education in the aided schools and colleges can stand scrutiny of judicial review. Right to life in its ambit and sweep includes the right to livelihood and a meaningful life is the requirement of the Article 21 of the Constitution of India. A teacher working in a school can not be equated with the workman working in a temporary project. It is not disputed before us that the State Government has pervasive control over the schools. True it is, the teachers working in the said schools and colleges are not Government employees and can not claim to be so but their right can not be infringed by changing the dictionary clause and other provisions by way of amendment. Such an action has to be tested on the twin consideration of Articles 14 and 21. Educational institutions can not be allowed to be closed as has been done. There has to be a progressive step in the matter of development of education. Importance of education can not be marginalised. As we have already indicate justifications that have been given by Government in support of the amendment fail to meet the requirement of the Article 14. In that backdrop we are also inclined to hold that the said amendment is also hit by Article 21 of the Constitution as far as the teachers of various aided institutions are concerned. We say so as in the case at hand continuance of aided educational institutions and continuance of service of teachers serving in the said institutions are inextricably connected and one can not be conceived to exist without the other.
97-A. At this juncture we will be failing in our duty if we do not refer to the decision cited by Mr. Tankha rendered in the case of Karnataka Liberal Education Society, Belgaum v. State of Karnataka and Ors., AIR 1997 Karnataka 93, wherein the learned Single Judge of Karnataka High Court in Paragraph 6 held as under :--
"6. I have given my anxious consideration to the submissions made at the Bar. The grant-in-aid Code is non-statutory in character. It embodies the terms and conditions subject to which the Government may grant aid to a Private Educational Institution. Any such aid is aimed at encouraging private enterprise in the field of education in the Primary, Secondary and College levels. The Code, specifically reserves the right in favour of the Government to refuse, reduce or completely withdraw the aid at any time, at their discretion notwithstanding the rules contained in the Code. There is thus no unqualified or vested right with an educational institution to claim the grant-in-aid nor is the extent of and sanctioned or granted meant to be a permanent feature. Suffice it to say that aid from the Government may be claimed only on the terms embodied in the Code and refusal of the same even upon fulfilment of the terms of the Code to some while extending the said benefit to others situate similarly may alone give a cause of action to the aggrieved to complain and seek redress under the protection of the equality clause enshrined in Article 14 of the Constitution. Stated differently while it may be possible for the State to totally abrogate the Code and decline to grant-in-aid to any institution as a matter of general and uniform policy it may not be possible to grant aid to some while refusing the same to others if any such refusal is based on no rational and intelligible differentia, between the two. Any such hostile treatment would fall foul of Article 14 making it imperative for the Court to step in to remedy the discriminatory use of the power to grant largesse for there is no gain said that even in the matter of grant of a public largesse the State cannot discriminate between those similarly situate. Therefore, subject to the compulsions of equality as guaranteed by Article 14, the grant or refusal of aid to a private educational institution is in the realm of the executive policy and hence beyond the purview of judicial review."
98. We have carefully perused the whole judgment. The learned Judge has expressed the opinion that no hostile treatment is permissible but there can be abrogation of the law. In our considered opinion in the said case the vires of any provision was not assailed and the learned Judge has observed the said position as a matter of possibility. With due respect, we are unable to pursuade ourselves to agree with the aforesaid observation.
99. We may note another submission of Mr. Tankha, learned Advocate General for the State that when there is policy decision of the State Government a plea of arbitrariness can not be accepted and no direction can be issued to compel to change its policy which in the realm of executive policy. The learned counsel has placed reliance on the decision rendered in the case of State Fishery Officers' Association, W.B. and Anr. v. State of W.B. and Anr., (1997) 9 SCC 65. We have perused the aforesaid decision in a most careful manner. We are of the considered opinion that the said decision does not render any assistance to the learned Advocate General for the State inasmuch as the said decision was rendered in a totally different context and in the case at hand we are dealing with the sustainability of the amendment on the backdrop of constitutional mandate and requirement.
100. Another facet of the submission of Mr. Tankha, learned Advocate General for the State is that even if the amended provision is declared ultra vires that would not ipso facto revive the old provision. The learned counsel for the petitioners have contended that the doctrine of revival applies to ordinary statutes. We are inclined to accept the submission of the learned counsel for the petitioners as we are of the considered opinion that the provisions have been brought into the statute book by way of amendment which destroy the quintessence and conscience of Articles 14 and 21 of the Constitution and any law that corrodes the basic essence of the Constitution can not be regarded as a good law and when the same is struck down the original provision rises like phoenix and the doctrine of revival gets attracted.
101. Now we shall proceed to deal with the liability of the State to pay the teachers imparting education in the colleges at the revised rate as per the University Grants Commission norms. It is submitted by the learned counsel for the petitioners that the State Government had accepted the scheme floated by the University Grants Commission and, therefore, it is bound to honour the same in all aspects and can not transfer the liability to the management of the institutions after a fixed period. It is urged by them that the State Government has accepted the grant for the said purpose and having undertaken to abide by the scheme, the State Government can not wriggle out of the same. The aforesaid submissions have been combatted by Mr. Tankha, learned A.G. for the State that for the teachers teaching in these colleges have no right to claim the pay scale as a matter of right. It is submitted by him that the State Government had accepted to take the burden as per the suggestion given by it to the University Grants Commission and thereafter it is the educational institutions which have to bear the burden. We may hasten to add in this context that certain decisions have been cited before us but we are not going to advert to the same inasmuch as from the documents produced before us it is not quite clear that what is the exact scheme of the University Grants Commission and what commitment was given by the State Government at the time of acceptance of the said responsibility. It is not clearly perceptible whether the State had given a commitment for the Government colleges as well as teachers of the private colleges for all times to come. As the picture has not been clearly frescoed before us we do not think it apposite to issue a direction to extend the privilege of the scale of pay recommended by the University Grants Commission to the teachers teaching in aided colleges. We think it appropriate to direct that the competent authority of the State Government shall enter into correspondence with the competent authority of the University Grants Commission and there after a decision shall be taken keeping in view the assistance by the University Grants Commission. The State should bear in mind that it can not accept the money from the University Grants Commission and divert the same in any other manner. If the money has been received for the purpose of giving pay scale to the teachers to the colleges, the same has to be respected. However, as has been indicated above the State will enter into correspondence with the University Grants Commission and take a decision. The said exercise shall be completed within a period of six months from today. We further proceed to add that the University Grants Commission may clarify its own position and do the needful as warranted in the facts and circumstances of the case keeping in view the law governing the field.
102. As we are nearing to the end we may state that this Court initially had passed the following order:
"After hearing learned counsel for the parties, we direct as follows subject to the ultimate decision of the case:
(i) The State Government shall deposit additionally towards arrears for college teachers from 1-10-1999 to 31-3-2000 which shall be paid to them in cash.
(ii) The State Government shall pay 80% of its contributions towards the salary of the teachers of colleges at revised rate and the school teachers at the existing rate upto and including the month of August, 2000,
(iii) The institutions shall deposit their contribution of 20% within a period of six weeks.
(iv) The State Government shall deposit against items (i) and (ii) within two weeks.
(v) The college teachers shall be released pay at the revised scales and school teachers the existing scales within a period of one week after the deposit by the State Government."
Thereafter when the clarification was sought this Court passed the following order:--
"The petitioners submit that they have not been paid salary. The difficulty appears to be whether 'salary' means basic pay or it includes other allowances which the petitioners were receiving before the order impugned was passed by the State Government.
We make it clear that the petitioners will be paid salary inclusive of the Dearness Allowance, House Rent Allowance, City Compensatory Allowance, etc. which they were receiving before the order impugned in this case was passed by the State Government. Shri Kulshrestha, Officer-in-Charge of the case on behalf of the State Government submits that for issuing clarifications in this behalf, period of one month would be required. Looking to the fact that the petitioners are not getting their salary for the past some months and that there should not have been any difficulty in issuing the directions by this time since salary includes other allowances referred to above as a matter of course, we direct the State to issue order/clarifications in this behalf within a period of 15 days. Thereafter, the competent authority will immediately release the salary of the Professors/teachers. The management is extended another chance to deposit their share within a period of two weeks."
Thereafter when in the mid of hearing a further clarification was sought, this Court considering the rival submissions raised at the Bar on 4-9-2001 passed the following order:--
"When this matter was called for further hearing and Mr. V.K. Tankha, learned Advocate General for the State stood up to argue the matter, Mr. Rajendra Tiwari, learned senior counsel appearing in some writ petitions submitted that this Court by order dated 16-11-2000 had directed the teachers to be paid 80 per cent salary out of contribution to be made by the State. The said order was extended till 30-1-2001 by order dated 30-11-2000. On 11-1-2001 this Court directed the interim order to remain in force till further orders. It is urged by Mr. Tiwari if the interim orders are construed in proper perspective, it is quite vivid that 80 per cent towards grant-in-aid shall be paid by the State Government and 20 per cent shall be borne by the Management until further orders. But the State Government has not complied with the aforesaid order and reduced it in case of the institutions imparting higher education. It is further put forth by Mr. Tiwari that as far as the schools are concerned, there is no grievance. As far as the institutions imparting higher education are concerned, the interim order is also applicable to the same. This fact is not disputed by Mr. Tankha, learned Advocate General for the State. However, he tried to putforth the cause of the State in a different manner to the effect that this Court had not stayed the operation of the Scheme but passed an interim order of the present nature.
On a perusal of the orders passed on different occasions and understanding the same in proper perspective, there remains no scintilla of doubt that 80 per cent of the amount towards grant-in-aid is to be paid, as it is, by the State Government until further orders. In view of this, we are inclined to direct that the State Government shall disburse 80 per cent as grant-in-aid to the institutions imparting higher education. The said exercise shall be completed within a period of two weeks from today.
Needless to emphasise, the amount so disbursed, shall cover the previous period. We may hasten to add at this juncture the anxiety expressed by the learned Advocate General for the State. It was submitted by him that if ultimately this Court upholds the amendment and the resultant scheme, then the State Government would be paying in excess, because of the interim order passed by this Court and, therefore, the interest of the State should be protected.
Appreciating the aforesaid submission of the Mr. Tankha, we are inclined to observe that any payment made by the State Government in excess of the stipulation in the Scheme, shall be subject to the result of this writ petition, and this Court shall pass appropriate orders while finally disposing of the matter. It also needs no special emphasis to state here, that this order shall apply in regard to all the connected matters pending before this Court."
103. Keeping in view the above directions, we direct that if the aforesaid amount has been disbursed the same shall be adjusted and the arrears shall be paid which was being paid before the notifications and amendments had come into force within a period of three months. We would like to note here that in some of the cases some other issues were raised but as the principal issues relate to the validity of the amendment and grant of pay scale as per the norms of University Grants Commission we have dealt with only these two aspects. Other issues which have been raised by learned counsel for the petitioners ancillarily it would be open to the aggrieved parties to file independent writ petitions for mitigation of the said grievances. The issues are kept open.
104. We will be failing in our duty if we do not take note of the fact that certain allegations have been made against certain institutions which have been not managing the institutions properly and collecting more funds which are beyond the prescribed limit. If any institution does not act as per the rules and guidelines issued by the State Government it would be open to the State Government to withdraw the aid by following the due process of law.
105. Before we part with the case we may quote some lines from Oliver Wendell Holmes:
"We too need education in the obvious to learn to transcend out own convictions and to leave room for much that we hold dear to be done away with short of revolution by the orderly change of law."
106. Ex consequent, we declare that the amendments which have been brought on the statute book by way of amended Act No. 26 of 2000 are ultra vires being hit by Articles 14 and 21 of the Constitution of India. We further conclude and hold that the educational institutions would be treated as they were treated before the amendments had come into force. As we have declared the amending provisions are ultra vires all the notifications and orders which have affected the rights of the petitioners are hereby quashed and the petitioners will reap all the consequential benefits. As far as the grant of UGC scale of pay is concerned the same has to be dealt with as has been directed hereinbefore.
107. Accordingly, the writ petitions are allowed to the extent indicated above. However, in the facts and circumstances of the case we deem it fit to direct that the parties shall bear their respective costs.